STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA MONDAY, NOVEMBER 9, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6261 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 6262 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 6263 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 6264 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 6265 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 6266 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 6267 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MIICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 6268 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 6269 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 6270 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN P.O. Box 156 7 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 128 J Street, 2nd Floor 10 Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 13 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 14 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 15 REID W. ROBERTS, ESQ. 16 311 East Main Street, Suite 202 Stockton, California 95202 17 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 18 JAMES F. ROBERTS 19 P.O. Box 54153 Los Angeles, California 90054 20 SACRAMENTO AREA WATER FORUM: 21 CITY OF SACRAMENTO 22 980 9th Street, 10th Floor Sacramento, California 95814 23 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 6271 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID A. SANDINO, ESQ. 7 P.O. Box 942836 Sacramento, California 94236 8 FRIANT WATER USERS AUTHORITY: 9 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 Fresno, California 93720 11 KERN COUNTY WATER AGENCY: 12 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Captiol Mall, 27th Floor Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: MICHAEL V. SEXTON, ESQ. 18 SAN JOAQUIN COUNTY: 19 NEUMILLER & BEARDSLEE 20 P.O. Box 20 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 BY: PAUL S. SIMMONS, ESQ. 25 REPRESENTATIVES CAPITOL REPORTERS (916) 923-5447 6272 1 ORLAND UNIT WATER USERS' ASSOCIATION: 2 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 3 P.O. Box 1679 Oroville, California 95965 4 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 7 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 8 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 9 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 10 209 South Locust Street Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 15 COUNTY OF COLUSA: 16 DONALD F. STANTON, ESQ. 17 1213 Market Street Colusa, California 95932 18 COUNTY OF TRINITY: 19 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 Hayfork, California 96041 21 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 REPRESENTATIVES CAPITOL REPORTERS (916) 923-5447 6273 1 TULARE IRRIGATION DISTRICT: 2 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 3 2 Sutter Street, Suite D Red Bluff, California 96080 4 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER P.O. Box 1028 7 Riverside, California 92502 BY: CHARLES H. WILLARD 8 COUTNY OF TEHEMA, et al.: 9 COUNTY OF TEHEMA BOARD OF SUPERVISORS 10 P.O. Box 250 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS P.O. Box 667 14 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 6755 Lake Amador Drive 17 Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 20 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 6274 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 6276 6 AFTERNOON SESSION 6380 7 END OF PROCEEDINGS 6474 8 STOCKTON EAST WATER DISTRICT: 6277 9 PANEL: 10 LOWELL PLOSS 6277 11 MIKE DELAMORE 6355 12 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 13 ALF BRANDT 6308 VIRGINIA CAHILL 6319 14 PAUL MINASIAN 6321 JOHN HERRICK 6330 15 THOMAS BIRMINGHAM 6341 16 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT: 17 MIKE DELAMORE: 18 THOMAS BIRMINGHAM 6380 DANTE JOHN NOMELLINI 6397 19 DANIEL GALLERY 6425 VIRGINIA CAHILL 6442 20 PAUL MINASIAN 6551 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6275 1 MONDAY, NOVEMBER 9, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning and welcome back. This 5 is the continuation of the Bay-Delta water rights hearing. 6 And I believe when last we met we completed the case in 7 chief of Mr. O'Laughlin's and Ms. Zolezzi and 8 Ms. Harrigfeld I think have two or three more witnesses to 9 complete their case in chief. 10 Is that right, Ms. Harrigfeld? 11 MS. HARRIGFELD: That's right. 12 C.O. CAFFREY: If you wish you may proceed. I 13 believe Mr. Ploss was sworn in earlier on the in these 14 proceeding? 15 MR. PLOSS: Yes. 16 C.O. CAFFREY: Thank you, sir. 17 MS. ZOLEZZI: Yes. And we, actually, have a panel of 18 two witnesses, Mr. Ploss and Mike Delamore. And apparently 19 he will be here as soon as he can. 20 MR. BRANDT: Mr. Delamore had car problems this 21 morning and presently he is on his way, hopefully. 22 C.O. CAFFREY: Is this going to present some kind of 23 a problem? 24 MR. BRANDT: We will see. We hope not. We hope we 25 will get Mr. Delamore done today, because he can't be here CAPITOL REPORTERS (916) 923-5447 6276 1 tomorrow. 2 MS. ZOLEZZI: Yeah, we will accommodate him as soon 3 as he comes but whatever we need to do to get him done. 4 MR. BRANDT: Can I also state for the record, just so 5 we're clear here, the United States Department of the 6 Interior is providing Lowell Ploss and Mike Delamore 7 pursuant to a request from Stockton East Water District 8 that identified certain topics. The topics were New 9 Melones Interim Plan of Operation, water quality releases 10 from New Melones. And Mr. Delamore is being provided for 11 the topic of San Joaquin Valley drainage, as I recall. 12 They are being provided as fact, or percipient 13 witnesses not expert witnesses. So they are here to 14 testify as to what the Bureau, or the Department of 15 Interior has done and it's along those lines, but not as 16 expert witnesses. 17 C.O. CAFFREY: All right. Thank you, Mr. Brandt. 18 Please, proceed Ms. Zolezzi. Thank you. 19 ---oOo--- 20 STOCKTON EAST WATER DISTRICT 21 DIRECT TESTIMONY 22 MS. ZOLEZZI: Good morning. Jeanne Zolezzi, General 23 Counsel for Stockton East Water District. 24 Now, Lowell -- Mr. Ploss, as mentioned you have 25 been sworn in and provided information on your background CAPITOL REPORTERS (916) 923-5447 6277 1 for the record, but could you describe to us the position 2 you hold at the Bureau just for background information? 3 MR. PLOSS: For the past six years I've been the 4 operations manager for the Central Valley Project for the 5 U.S. Bureau of Reclamation. In that capacity, I oversee 6 and direct the operation decisions on a daily basis for 7 both water and power production out of the Central Valley 8 Project. 9 MS. ZOLEZZI: Thank you. And as operations manager 10 for the Central Valley Project, are you aware that the 11 original 1944 congressional operation for the New Melones 12 Project did not include water quality as an authorized use 13 for New Melones? 14 MR. PLOSS: I'm not fully aware of the 1944 15 authorization for the New Melones Project. In my review in 16 preparation for this, I am aware of the 1944 Flood Control 17 Act authorizing the Corps of Engineers to investigate and 18 seek further authorization for various projects. 19 I believe that may be what you're referring to and 20 that Act did not include New Melones Reservoir, 21 specifically, for water quality from New Melones. 22 MS. ZOLEZZI: Thank you. Are you familiar with 23 Stockton East Water District's Exhibit 18 which is Public 24 Law 87-874 enacted October 23rd, 1962, which reauthorized 25 the New Melones Project? CAPITOL REPORTERS (916) 923-5447 6278 1 MR. PLOSS: Yes, I am. 2 MS. ZOLEZZI: And if we can place on the overhead an 3 excerpt from that public law. And this is Stockton East 4 Water District's Exhibit -- 5 MS. HARRIGFELD: 18-A. 6 MS. ZOLEZZI: -- 18-A. And this excerpts from 7 Stockton East Water District's Exhibit 18 the language 8 included by congress regarding water quality. 9 And if you're familiar with this language, 10 Mr. Ploss, isn't it true in Public Law 87-874 congress did 11 not expressly add water quality as a purpose of New 12 Melones, but merely directed the Secretary of the Army to 13 consider that option? 14 MR. PLOSS: That's correct. That's what the language 15 states. 16 MS. ZOLEZZI: Okay. Turning to Stockton East Water 17 District's Exhibit Number 19 entitled "Design Memorandum 18 Number 5, New Melones Project Water Quality Control," dated 19 June 1965, are you aware of this document? 20 MR. PLOSS: Yes, I am. 21 MS. ZOLEZZI: This design memorandum presents the 22 results of the cooperative studies done by the Public 23 Health Service, the Bureau of Reclamation and the Army 24 Corps of Engineers of water quality requirements needed in 25 the Stanislaus and lower San Joaquin River. CAPITOL REPORTERS (916) 923-5447 6279 1 Are you aware that the Bureau conducted 2 operational studies of the New Melones Project to assist 3 Public Health Services in determining the ability of New 4 Melones to meet the objective of water quality of 500 parts 5 per million TDS or less at Vernalis? 6 MR. PLOSS: Yes, I am. 7 MS. ZOLEZZI: Was the purpose of these studies to 8 determine the feasibility of adding water quality control 9 as a function of the New Melones Project as required under 10 Public Law 87-874? 11 MR. PLOSS: Yes, it was in response to that 12 authorization. 13 MS. ZOLEZZI: Are you aware that the Bureau's studies 14 showed that the average annual release of 10,900 acre-feet 15 would be required to control TDS concentration at the 16 Vernalis gauge and would vary from 0 to 48,500 acre-feet 17 annually? 18 MR. PLOSS: I believe those are the correct figures. 19 MS. ZOLEZZI: If we could go to overhead -- Stockton 20 East Water District's Exhibit 19-A. This is Attachment 2 21 to Memorandum Number 5, which is Stockton East Water 22 District's Exhibit 19. And it's a letter from the Regional 23 Director of the Bureau of Reclamation providing his views 24 on the subject of the advisability of incorporating water 25 quality control into the New Melones Project. CAPITOL REPORTERS (916) 923-5447 6280 1 In that letter, the Mid-Pacific Director made the 2 recommendation that limited water quality objectives be 3 incorporated into the New Melones Project based on two 4 assumptions. 5 And the first: Is that in terms of water -- 6 incorporation of water quality will not affect the 7 project's yield. And the second, which I believe is on the 8 next page of that letter, is that with the stipulation that 9 during its 50-year repayment period these objectives will 10 not require releases exceeding 70,000 acre-feet in any one 11 year. 12 Now, would you assume that the Corps of Engineers 13 relied upon this recommendation by the Mid-Pacific Director 14 of the Bureau in making its own recommendation in 15 Memorandum Number 5 that releases from New Melones Dam for 16 water quality purposes be made? 17 MR. BIRMINGHAM: Objection. Compound. 18 MR. BRANDT: And add to that that just 19 authentication, lay some foundation on this letter, because 20 he hasn't testified about anything about this letter yet. 21 MS. ZOLEZZI: It is a part of Corps Memorandum Number 22 5. 23 MR. BRANDT: Okay. Sorry. 24 C.O. CAFFREY: Could you maybe try the question 25 again? CAPITOL REPORTERS (916) 923-5447 6281 1 MS. ZOLEZZI: Uh-huh. Basically, the question is: 2 Would you assume that the Corps of Engineers relied upon 3 this recommendation letter from the Bureau in making its 4 own recommendation to congress as to whether or not to 5 include water quality as a purpose of New Melones? 6 MR. PLOSS: I cannot say what the Corps of Engineers 7 specifically relied on in making their decision, but this 8 was part of the information that the Bureau of Reclamation 9 provided to the Corps. 10 MS. ZOLEZZI: Okay. Thank you. If we can go to 11 Stockton East Water District's Exhibit 19-B, which is an 12 overhead. And this is an excerpt from, again, Design 13 Memorandum Number 5. And it's a conclusion of the Public 14 Health Services which states, 15 (Reading): 16 "That water quality releases from New Melones 17 Storage Project will contribute significantly to 18 the solution of the overall pollution problem in 19 the lower San Joaquin River, but should not be 20 considered as a complete solution to the problem." 21 Do you have any idea what was meant by the latter 22 portion of that, that it should not be considered a 23 complete solution of this problem? 24 MR. PLOSS: No, I don't. 25 MS. ZOLEZZI: Turning to Stockton East Water District CAPITOL REPORTERS (916) 923-5447 6282 1 overhead 21-A, Exhibit. You are familiar with the Stockton 2 East Water District's Exhibit 21 the Environmental Impact 3 Statement prepared by the Corps of Engineers in 1972 for 4 the New Melones Project? 5 MR. PLOSS: I'm aware of the document. I have not 6 reviewed it totally. 7 MS. ZOLEZZI: At Page 34 and 35 of that EIR -- or 8 EIS, excuse me, the conclusion is reached that the 9 long-term average of 70,000 acre-feet for water quality 10 purposes is about 35,000 annually and about 150,000 11 acre-feet of the conservation yield would remain available 12 for export to other areas on the east side of the San 13 Joaquin Valley including San Joaquin and Stanislaus 14 Counties. 15 Based on these calculations, did the Bureau of 16 Reclamation enter into long-term water service contracts 17 with Central San Joaquin Water Conservation District and 18 Stockton East Water District for 155,000 acre-feet of yield 19 annually? 20 MR. BIRMINGHAM: Objection. Compound. Lacks 21 foundation. 22 MS. ZOLEZZI: It's one question. 23 MR. BIRMINGHAM: Actually, Mr. Caffrey, it's multiple 24 questions. The witness has testified he's not familiar 25 with this document. He has -- he's aware of its existence. CAPITOL REPORTERS (916) 923-5447 6283 1 He hasn't reviewed it thoroughly. She's asking a question 2 about what the document states, or she's testifying, I 3 presume she's asking what the document states, and then 4 she's gone on and asked him the question about the 5 conclusions that the Bureau reached based upon the analysis 6 contained in the document. 7 I think at a minimum she should provide the 8 witness a copy of the document so that he can verify that 9 what she's stating is actually contained in the document. 10 And then it would be appropriate for her to ask the 11 following questions. 12 C.O. CAFFREY: Thank you, Mr. Birmingham. 13 Ms. Zolezzi, any comment? 14 MS. ZOLEZZI: We can provide him with the document. 15 C.O. CAFFREY: All right. Thank you, ma'am, 16 And while we're doing that, Mr. Ploss, on the 17 question of the compound nature of the question and its 18 understandability, do you understand the question in view 19 of your previous answers and do you feel that you're able 20 to answer it? 21 MR. PLOSS: I believe so. 22 C.O. CAFFREY: All right, sir. 23 C.O. CAFFREY: Let's take a look at the document, 24 let's get it before you and see where that takes us. If 25 you want to direct him to any part of it on the record, CAPITOL REPORTERS (916) 923-5447 6284 1 Ms. Zolezzi, we can give the witness time to look at that. 2 MS. ZOLEZZI: And as stated that would be at Pages 34 3 and 35 of the Environmental Impact Statement for the New 4 Melones Project, which is Stockton East Water District's 5 Exhibit 21. And the particular passage that we requested 6 Mr. Ploss to make himself familiar with is the excerpt that 7 is shown on the overhead. 8 MR. PLOSS: Okay. Yes. 9 C.O. CAFFREY: All right. Maybe just for the Chair 10 and the Board you could repeat the question. 11 MS. ZOLEZZI: Certainly. 12 C.O. CAFFREY: Because it was compound and maybe if 13 you can break it up into one or two parts so, at least, I 14 can follow it. Please, proceed. 15 MS. ZOLEZZI: Based on the calculations that you have 16 just reviewed in the EIS did the Bureau enter into 17 long-term service contracts with Central San Joaquin Water 18 Conservation District and Stockton East Water District? 19 MR. PLOSS: The Bureau did enter into contracts with 20 those two districts, that is correct. 21 MS. ZOLEZZI: And what was the amount of those 22 contracts? 23 MR. PLOSS: If I recall precisely I believe it is 24 100,000 acre-feet for Stockton East Water District. And I 25 believe it's 78,000 acre-feet for Central San Joaquin. CAPITOL REPORTERS (916) 923-5447 6285 1 MS. ZOLEZZI: Close enough. 2 MR. PLOSS: Close enough. 3 MS. ZOLEZZI: And I can't testify, so I won't provide 4 a correction. Do you have any idea where the Bureau 5 developed those numbers to be used for contracting 6 purposes? 7 MR. PLOSS: I do not. In the past, and I believe the 8 current policy of Reclamation is we develop a basis of 9 negotiations. And that was the document then that was used 10 in the development of the water service contracts. I have 11 not reviewed or seen that basis of negotiations. 12 MS. ZOLEZZI: So you have no idea whether or not the 13 assumed 70,000 acre-feet release was incorporated into the 14 assumptions? 15 MR. PLOSS: I am not. 16 MS. ZOLEZZI: Okay. Turning to Stockton East Water 17 District's Exhibit Number 20, this is a Memorandum of 18 Understanding between the Bureau of Reclamation and the 19 Central Valley Regional Water Quality Control Board. Are 20 you familiar with that MOU? 21 MR. PLOSS: Yes, I am. 22 MS. ZOLEZZI: On the overhead we will place Stockton 23 East Water District's Exhibit 20-A, which is an excerpt 24 from that MOU from Section 1. And did the Bureau of 25 Reclamation and the Regional Board agree in that MOU that CAPITOL REPORTERS (916) 923-5447 6286 1 the Bureau shall release from New Melones for water quality 2 purposes not to exceed 70,000 acre-feet of water in any one 3 year? 4 MR. PLOSS: Yes, they did. 5 MS. ZOLEZZI: In Section 5 of that agreement, and if 6 you need a copy I can provide you with that, did the Bureau 7 of Reclamation and the Regional Board agree that the 8 provisions of that MOU should be included by way of 9 reference in any permit issued by the State Board for New 10 Melones? 11 MR. PLOSS: Yes, they did. 12 MS. ZOLEZZI: Does it appear to you from that Section 13 5 agreement that the terms of the MOU should be 14 incorporated into any permit that it was the intention of 15 both the Bureau and the Regional Board to limit any permit 16 condition requiring releases for water quality to 70,000 17 acre-feet in any one year? 18 MR. PLOSS: Yes, that was the intent. 19 MS. ZOLEZZI: Are you familiar with State Water 20 Resources Control Board Decision 1422? 21 MR. PLOSS: Yes. 22 MS. ZOLEZZI: And that is State Water Resources 23 Control Board's Exhibit 5-F in these proceedings. Pages 11 24 through 13 of Decision 1422 discuss the Bureau's commitment 25 under its agreement to the Regional Board that we were just CAPITOL REPORTERS (916) 923-5447 6287 1 talking about, the MOU, to release up to 70,000 acre-feet 2 for water quality. 3 And included in that discussion at Pages 11 4 through 13 of D-1422 is the statement by the Board in its 5 decision that releases required to meet these water quality 6 objectives would not exceed 70,000 acre-feet until about 7 the year 2075. Based on current information would you say 8 that the estimate of releases required was incorrect? 9 MR. BIRMINGHAM: Objection. Compound. 10 MR. BRANDT: Can I also ask that the document be put 11 in front of the witness, please? 12 MS. ZOLEZZI: Sure. 13 C.O. CAFFREY: So we're getting the document for 14 Mr. Ploss to refer to. 15 Mr. Ploss, do you understand the question? 16 MR. PLOSS: Yes. 17 C.O. CAFFREY: Do you want it broken up? 18 MR. PLOSS: Could you repeat it? 19 C.O. CAFFREY: While we're repeating, why don't you 20 break it up since I think you had the same objection, 21 Mr. Brandt. 22 MR. BRANDT: I do. 23 C.O. CAFFREY: Break it down I guess is better than 24 to break it up, excuse me. 25 MR. BRANDT: I think it was just the last question. CAPITOL REPORTERS (916) 923-5447 6288 1 MS. ZOLEZZI: That's right. It's one question 2 MR. BRANDT: There was a long period where -- 3 MS. ZOLEZZI: I can't ask him about the background 4 information. 5 MR. BRANDT: I wasn't sure if that was a question or 6 not. 7 MS. ZOLEZZI: At Pages 11 through 13 of Decision 1422 8 does the State Board discuss the Bureau's commitment under 9 its agreement with the Regional Board? 10 MR. PLOSS: Yes. 11 MS. ZOLEZZI: In Decision 1422 does the Board make 12 the statement that releases required to meet these water 13 quality objectives would not exceed 70,000 acre-feet 14 maximum until about the year 2075? 15 MR. PLOSS: It does. 16 MS. ZOLEZZI: Based upon the current information you 17 have today as the operations manager for the CVP, would you 18 say that this estimate was incorrect? 19 MR. PLOSS: Based on the studies that were done at 20 the time the estimate appeared to have been correct. 21 Conditions have changed today. 22 MS. ZOLEZZI: So it is no longer correct under 23 current conditions? 24 MR. PLOSS: I believe so. 25 MS. ZOLEZZI: Would you also say that the Bureau's CAPITOL REPORTERS (916) 923-5447 6289 1 assumption that we saw in the letter from the Bureau of 2 Reclamation that releases from New Melones for water 3 quality purposes would not affect the project yield were 4 also incorrect based upon today's information? 5 MR. PLOSS: I believe based on today's information 6 and a reanalysis of the project we would come to different 7 conclusions. 8 MS. ZOLEZZI: And going back to Stockton East Water 9 District's Exhibit 19-A, if we can go back, just to refresh 10 your recollection -- if you could put the second page up 11 of the recommendation made by the Mid-Pacific Director, is 12 it true that the Mid-Pacific Director recommended that 13 water quality objectives be incorporated into the New 14 Melones unit? 15 MR. PLOSS: Yes. 16 MS. ZOLEZZI: Was that based upon the stipulation 17 that during the 50-year repayment period the objectives 18 would not require releases exceeding 70,000 acre-feet in 19 any one year? 20 MR. PLOSS: That was the conclusion of the analysis, 21 yes. 22 MS. ZOLEZZI: Do you think it's possible that if the 23 Bureau of Reclamation in 1965 knew that incorporation of 24 water quality objectives would have an affect on a 25 project's yield and would require substantially more than CAPITOL REPORTERS (916) 923-5447 6290 1 70,000 acre-feet the Bureau would have made a different 2 recommendation? 3 MR. BIRMINGHAM: Objection. Calls for speculation. 4 MR. MINASIAN: Beyond the expertise of the witness. 5 MS. ZOLEZZI: I'm just asking if he has any ideas. 6 He is a senior operations manager with the Bureau of 7 Reclamation. 8 C.O. CAFFREY: You may answer the question, 9 Mr. Ploss, if you have an answer. 10 MR. PLOSS: I can't draw any conclusion on what the 11 Regional Director may have recommended at that time. 12 C.O. CAFFREY: All right. Thank you, sir. 13 MS. ZOLEZZI: Thank you. If we can turn to overhead 14 6, which is Department of the Interior's Exhibit 4-C. And, 15 Mr. Ploss, you're familiar with this exhibit, are you not? 16 MR. PLOSS: Yes. 17 MS. ZOLEZZI: Are you the person who prepared this 18 exhibit? 19 MR. PLOSS: It was prepared under my direction. 20 MS. ZOLEZZI: Could you explain what triggers the 21 application of a particular label to a Stanislaus River 22 release under this chart? 23 MR. PLOSS: In planning the annual operations for the 24 New Melones Project, for lack of a better term I'll say we 25 develop a water budget. We look at how to budget the water CAPITOL REPORTERS (916) 923-5447 6291 1 supply from New Melones each year in our operations 2 forecast. We take into consideration the Fish and Wildlife 3 requirements for in-stream flows on the Stanislaus River. 4 Also, the water quality requirements both at Ripon 5 on the Stanislaus River and at Vernalis on the San Joaquin 6 as well as requirements for existing water right holders on 7 the Stanislaus River as well as CVP contractors and 8 Bay-Delta requirements. 9 MS. ZOLEZZI: And isn't it true that all river 10 releases up to the amount of the fishery pattern will be 11 included in the annual fishery allocation? 12 MR. PLOSS: That is correct. 13 MS. ZOLEZZI: And all river releases up to the amount 14 of the Bay-Delta pattern, excluding fishery, will be 15 included in the annual Bay-Delta allocation? 16 MR. PLOSS: Those amounts that are needed in addition 17 to other flow requirements, yes. 18 MS. ZOLEZZI: And all river releases up to the amount 19 of the Vernalis water quality requirement, again, excluding 20 releases that have been made for fishery and Bay-Delta 21 would be included in the annual Vernalis water quality 22 allocation under this chart? 23 MR. PLOSS: That's correct. 24 MS. ZOLEZZI: So as a result the graph does not show 25 how much water actually needs to be released from New CAPITOL REPORTERS (916) 923-5447 6292 1 Melones Reservoir to meet water quality objectives in the 2 absence of CVPIA and Bay-Delta flows released from the 3 project? 4 MR. BRANDT: Objection. It mischaracterizes what 5 this is. This is a historical release as opposed to -- I 6 think your question was putting it in the future on how 7 much would be needed. 8 MS. ZOLEZZI: Okay. 9 MR. BRANDT: And based on that I think it 10 mischaracterizes his testimony. 11 MS. ZOLEZZI: I'll rephrase that. 12 C.O. CAFFREY: Thank you, Ms. Zolezzi. 13 MS. ZOLEZZI: The graph does not show how much water 14 was actually released to meet water quality objectives in 15 the absence of fishery and Bay-Delta flows that were 16 released? 17 MR. PLOSS: That's correct. 18 MS. ZOLEZZI: In fact, isn't it possible that the 19 graph presents an inaccurate representation of the amount 20 of water that needs to be released from New Melones to meet 21 water quality objectives, because the graph does not 22 provide the reader with information on the background you 23 just described about how these allocation bars are 24 established? 25 MR. PLOSS: No attempt was made here to portray water CAPITOL REPORTERS (916) 923-5447 6293 1 release requirements for any exclusive purpose -- 2 MS. ZOLEZZI: Okay. 3 MR. PLOSS: -- in New Melones. 4 MS. ZOLEZZI: And from this graph can you tell 5 whether or not the water quality requirements were met in 6 any given year? 7 MR. PLOSS: Not from this graph. 8 MS. ZOLEZZI: Are you familiar with the New Melones 9 Interim Plan of Operation according to which the New 10 Melones Project is currently being operated? 11 MR. PLOSS: Yes. 12 MS. ZOLEZZI: And just for the record, that plan of 13 operation is an attachment to the Department of Interior's 14 Exhibit Number 2, which is Mr. Ploss's testimony. 15 And according to that plan from 70,000 to 250,000 16 acre-feet annually are allocated for releases from New 17 Melones for water quality purpose; isn't that true? 18 MR. PLOSS: That is the projection we're using for 19 operation planning, correct. 20 MS. ZOLEZZI: Again, isn't it true that this 21 projection that you're using for water quality allocations 22 may not provide an accurate picture of how much water would 23 actually be needed to be released from New Melones to meet 24 water quality, because it assumes releases made for fishery 25 and Bay-Delta purposes? CAPITOL REPORTERS (916) 923-5447 6294 1 MR. PLOSS: That is correct. 2 MS. ZOLEZZI: And isn't it also true that this 3 budgeting allocation from 70,000 to 250,000 acre-feet 4 annually also does not guarantee that the standard will be 5 met in any given year? 6 MR. PLOSS: This was developed for the purpose of 7 planning our operations not to indicate what the actual 8 operations would be on a day-to-day basis. 9 MS. ZOLEZZI: So that the amount allocated may not be 10 satisfactory to meet the water quality standard at 11 Vernalis? 12 MR. PLOSS: That's correct. 13 MS. ZOLEZZI: Let's use these numbers, however, and 14 develop a hypothesis if we might. Let's say it's 19 -- and 15 again, this is going to be asking for Mr. Ploss to give his 16 opinion on what the Bureau may or may not have done. 17 MR. BRANDT: Can I also -- also just specify for the 18 record that we are talking about the Interim Operations 19 Plan that the Department of the Interior has entered as 20 Exhibit 4-D, as in Dog. I just would like to also request 21 that we be specific about which numbers and forecasts she's 22 referring to. If we could refer to the record that would 23 be helpful for this witness. 24 C.O. CAFFREY: That's what we will attempt to do. 25 And thank you for identifying that, Mr. Brandt. CAPITOL REPORTERS (916) 923-5447 6295 1 MR. BRANDT: Okay. 2 MS. ZOLEZZI: In using the water quality budget 3 numbers from DOI Exhibit 4-D, the Interim Plan of 4 Operation, let's assume that it's 1965. And the Bureau is 5 reviewing information on how much water would be needed for 6 water quality purposes in order to make its recommendation 7 on whether or not water quality should be included as a 8 purpose of the New Melones Project. 9 And instead of the studies revealing that 0 to 10 48,500 acre-feet would be needed, as you testified earlier, 11 the studies revealed that from 70,000 to 250,000 would be 12 needed. 13 Do you think it's possible with that information 14 that the Bureau would not have concluded that incorporation 15 of water quality will not affect the project's yield? 16 MR. BRANDT: Objection. Incomplete hypothetical. 17 There's a whole other range of factors. Calls for 18 speculation. 19 MR. MINASIAN: May I add to his objection: Could we 20 have clarification? Mr. Brandt very carefully indicated 21 that Mr. Ploss was not being called as an expert. These 22 questions call for an experts's opinion and application of 23 facts. And when we come to cross-examination if we're 24 going to get into this, it may be appropriate. I wouldn't 25 want Mr. Brandt to expect to be able to object on this CAPITOL REPORTERS (916) 923-5447 6296 1 subject. So may I call this to your attention? 2 MR. BRANDT: Yes. And I would say that he is not an 3 expert. The difficulty with this one is it's -- instead 4 of -- that's why I objected on speculation. And also this 5 one is in the past -- expecting what's going to happen in 6 the future, that is more of an expert -- clearly an expert 7 question. This one is a little tougher because it's in the 8 past, but it's on that borderline. But I still think that 9 it's calling for speculation. And that really is an 10 objection that it's beyond the expertise of this witness 11 since he's not appearing as an expert. 12 C.O. CAFFREY: The Chair agrees it's calling for 13 expert speculation. 14 MS. ZOLEZZI: May I ask a question? 15 C.O. CAFFREY: Unless Mr. Ploss violently objects and 16 wants to answer the question, I'm not going to require him 17 to do so. Why don't you ask your question and then we'll 18 go to Mr. Jackson. 19 MS. ZOLEZZI: My question is whether or not Mr. Ploss 20 testified as an expert on behalf of the Department of the 21 Interior? 22 MR. BRANDT: He is not. 23 MS. ZOLEZZI: Okay. 24 C.O. CAFFREY: And Mr. Jackson, sir, please? 25 MR. JACKSON: I'm a little confused. I mean this man CAPITOL REPORTERS (916) 923-5447 6297 1 is the operator of the State Water Project. If he's not an 2 expert -- 3 MS. ZOLEZZI: Central Valley. 4 MR. JACKSON: Central Valley Project, excuse me, if 5 he's not an expert on the operations of the Central Valley 6 Project then there is no one on the planet who is. I don't 7 understand how you can stipulate that the only expert -- 8 well, that the most highly ranking expert is not an expert 9 and then sort of restrict cross-examination because of it. 10 C.O. CAFFREY: Thank you, Mr. Jackson. Would you 11 like to respond to that, Mr. Brandt? 12 MR. BRANDT: Sure. There are several pieces here. 13 One is that he is -- he is being provided not as an expert. 14 Federal regulations restrict the opportunity for Federal 15 witnesses to testify as experts on others' behalf. And so 16 they are -- they're not allowed to testify as experts 17 expect under certain conditions. And that would be 18 including where the Federal Government allows that to 19 happen. 20 This is, particularly, an issue where there are 21 maybe a number of Federal agencies involved in some way or 22 another, and they're not all in the hearing. So that's why 23 generally it's very restricted and there's a process we 24 have to go through to get approval to do this. 25 And that's why we are not providing him as an CAPITOL REPORTERS (916) 923-5447 6298 1 expert witness for this. I mean if we were, then that 2 would be wide open, but at this point we are not providing 3 him as expert testimony, he's not authorized to provide 4 expert testimony in this forum. 5 C.O. CAFFREY: So it's solely a question of Federal 6 regulation, or is it possibly a question of generalism and 7 delegation and how high up he is in the organization versus 8 greater levels of expertise at a lower level who have hands 9 on? I don't mean to answer your question for you, but that 10 would help me understand as well if that were the case. 11 MR. BRANDT: Well, I think it's partly also a 12 question-by-question. For this question, I mean this is 13 really something -- I don't even know if he were an expert 14 that he can answer something that speculates what someone 15 might have done 20 years ago and know what were all the 16 factors that were being considered at that time. I mean 17 there may be a whole range of things that go in there. 18 So in some ways it's a question-by-question, but 19 is more of a -- it is a Federal regulation for us to go 20 through a process to allow someone to testify as an expert. 21 It's a question of conflict of interest and United States 22 Government presenting one case. And that's why generally 23 they're not allowed to be called by other parties other 24 than the United States as an expert witness. 25 C.O. CAFFREY: All right. Mr. Minasian, go ahead. CAPITOL REPORTERS (916) 923-5447 6299 1 MR. MINASIAN: May I raise an objection on behalf of 2 the Exchange Contractors, I think that everything 3 Mr. Brandt has said at least meets my understanding of the 4 regulations inside the Department of Interior to avoid 5 conflict. But this would set a very bad precedent if we 6 limited the ability of Mr. Ploss to answer questions in 7 regard to the hydrology, or his knowledge of the operations 8 of the project. 9 Just imagine for a moment if the Board subpoenaed 10 Mr. Ploss and this privilege was asserted. We have a 11 contradictory public policy here. We have Article 8 of the 12 Federal Act which says that the United States Department of 13 the Interior is subject to water laws and procedures in the 14 State of California. And that in this particular 15 application seems to override considerations of internal 16 Department of Interior policy. 17 Now, there is a line to be drawn, but it's a line 18 to be drawn by the Chair in light of the concerns that 19 Mr. Brandt has stated. And as to the Department of 20 Interior putting a case with a coordinated, consistent and 21 noncontradictory term between the United States Fish and 22 Wildlife Service and the Bureau of Reclamation, that's 23 never going to happen. 24 So it looks to me as if the Chair should on a 25 question-by-question basis determine if the matter arises CAPITOL REPORTERS (916) 923-5447 6300 1 from Mr. Ploss' history and experience with the project and 2 allow those answers which may require expert knowledge to 3 be given. 4 C.O. CAFFREY: Thank you for that guidance, 5 Mr. Minasian. Mr. Nomellini, do you rise to agree? 6 MR. NOMELLINI: I agree in part. I think the Federal 7 Government has chosen to utilize the State water right 8 process to secure its permits and various changes to those 9 permits. It has to submit to the jurisdiction of this 10 Board. I view this as an attempt by the Federal regulation 11 to limit their submission to the jurisdiction of this 12 Board. And, therefore, I object to that. I think it's 13 improper. If they want to adhere to that then I would move 14 that we revoke their permits. 15 Now, in terms of calling this witness as an 16 expert, whatever the regulations are, I don't think it has 17 any applicability here. He's called as an adverse witness 18 and, therefore, he's subject to cross-examination, which I 19 don't think is limited in that way. If he doesn't have an 20 answer, that's fine. But for somebody to condition his 21 appearance as not being an expert, or what have you, I 22 think that's totally inappropriate. 23 And, further, I believe that when we do 24 cross-examine this witness, that we would cross-examine 25 beyond Stockton East who called him, we should not be CAPITOL REPORTERS (916) 923-5447 6301 1 limited in any respect. If Jeanne Zolezzi on behalf of 2 Stockton East made some kind of deal with Brandt that she 3 won't ask questions of Mr. Ploss as an expert, that's 4 something else. 5 But I don't think this objection based on 6 regulation should stand. If we have a problem on that, we 7 ought to adjourn the hearing and take this thing in on a 8 writ of some kind and get it determined. 9 C.O. CAFFREY: All right. Thank you, Mr. Nomellini. 10 Mr. Herrick, you have something, sir? 11 MR. HERRICK: Very briefly, Mr. Chairman. I noticed 12 Mr. Ploss as an expert witness in a prior phase of this 13 hearing. There was no objection and expert witness 14 questions were asked. I think if there's any sort of 15 defense it's been waived. 16 C.O. CAFFREY: Thank you, sir. I was going to go to 17 Ms. Leidigh unless Mr. Brandt wants to add something. 18 Do you want to add something? 19 MR. BRANDT: Just two things. One is I'd like it to 20 be noted where the expert questions were in that testimony, 21 because most of that -- in fact, I believe all of that was 22 what was the history, what we do, those kinds of things. 23 It was factual based questions. 24 And, secondly, I would agree with Mr. Nomellini 25 that you have jurisdiction over our permits. And that's CAPITOL REPORTERS (916) 923-5447 6302 1 something you have jurisdiction over. You do not have 2 jurisdiction over our employees and our witnesses. And I 3 would cite to in re: Elko County Grand Jury, 109 F 3d., 4 Page 554 which is a Ninth Circuit case. 5 So, yes, you do have jurisdiction over our 6 permits. And that is a question that we have. And if you 7 wanted to -- you could do something to our permits, but not 8 necessarily require this witness to answer this. Although, 9 I should also say we're talking about something, in this 10 case I don't know if this witness would be able to answer 11 this question, because this one is so speculative, but we 12 need to deal with this in general as well. 13 C.O. CAFFREY: Thank you, Mr. Brandt. I know that if 14 we ever mistreat you in any of our proceedings you'll let 15 us know about it in this or some other venue. 16 Ms. Leidigh, do you wish to comment on this there, 17 or do you want to comment on it there? Do you want to take 18 a time-out? Let's take a time-out. It won't be a very 19 long time-out, by the way. 20 (Off the record from 9:40 a.m. to 9:41 a.m.) 21 C.O. CAFFREY: All right, we're back on the record. 22 Here's the ruling: The witness will be allowed to answer 23 questions, even a nonexpert witness according to our 24 regulations is entitled and authorized to give his or her 25 opinion in the best of their experiences. And I will allow CAPITOL REPORTERS (916) 923-5447 6303 1 Mr. Ploss to answer that question, if he has an opinion. 2 Go ahead, sir. 3 MS. ZOLEZZI: Do you remember the question, 4 Mr. Ploss? 5 C.O. CAFFREY: Would you like to repeat it? 6 MR. PLOSS: Would you like to repeat it, or read it 7 back? 8 MS. ZOLEZZI: That's fine. If I can simplify: Do 9 you think that it's possible with the information that the 10 Bureau has today on how much water is needed to meet water 11 quality objectives in Vernalis that the Bureau would not 12 have concluded as it did that incorporation of the water 13 quality will not affect the project's yield? 14 MR. BRANDT: Just for the record, my objection stands 15 and I understand that you ruled on it. 16 C.O. CAFFREY: That's fine, Mr. Brandt, your 17 objection is in the record. Thank you, sir. 18 MR. PLOSS: This is a highly speculated question. 19 And knowing the information today if we had known that in 20 1965 may have changed the scope of the entire Central 21 Valley Project. I cannot speculate on what the Regional 22 Director back in 1965 would have determined. 23 MS. ZOLEZZI: Okay. Thank you. 24 C.O. CAFFREY: Thank you, sir. 25 MS. ZOLEZZI: Moving to the water right permits CAPITOL REPORTERS (916) 923-5447 6304 1 issued pursuant to State Water Resources Control Board 2 Decision 1422, are you familiar with those permits? 3 MR. PLOSS: Yes. 4 MS. ZOLEZZI: Do those permits include San Joaquin 5 County, Calaveras County, Tuolumne County and Stanislaus 6 County as the place of use for the New Melones Project 7 water right permits? 8 MR. PLOSS: Yes, they do. 9 MS. ZOLEZZI: Are any other counties included within 10 that place of use? 11 MR. PLOSS: Not in the -- not in the Board's order, 12 no. 13 MS. ZOLEZZI: And in the permits that were issued? 14 MR. PLOSS: No. 15 MS. ZOLEZZI: If we can place on the overhead 16 Stockton East Water District's Exhibit 37, which is an 17 excerpt from State Water Resource Control Board Decision 18 1422 which as mentioned earlier is State Water Resources 19 Control Board Exhibit 5-F in these proceedings. 20 Are you familiar with that portion of the decision 21 which is excerpted here? 22 MR. PLOSS: Yes. 23 MS. ZOLEZZI: At Page 16 and 31 which you have in 24 front of you, you're familiar with that portion of the 25 decision where the State Board notes that the Bureau CAPITOL REPORTERS (916) 923-5447 6305 1 considers that the four-county place of use is entitled to 2 preference in the use of project water based on the 3 provisions of Public Law 87-874 and the California County 4 of Origin law? 5 MR. PLOSS: Yes. 6 MS. ZOLEZZI: Does the Bureau of Reclamation still 7 recognize that preference? 8 MR. PLOSS: Yes, we do. 9 MS. ZOLEZZI: Those are all the questions I have for 10 Mr. Ploss. So maybe, Mr. Brandt, do you want to cross 11 Mr. Ploss now while we're waiting for Mr. Delamore? 12 C.O. CAFFREY: Mr. Delamore is not yet here; is that 13 correct? 14 MR. BRANDT: He's not yet here. 15 C.O. CAFFREY: Ms. Whitney? 16 MS. WHITNEY: We received a notice of errata 17 regarding some exhibits that were submitted for Phase V 18 which indicated that a corrected Exhibit 4-C would be 19 submitted with Mr. Ploss's testimony. 20 MR. BRANDT: Phase V or Phase II? 21 MS. WHITNEY: Phase II, I'm sorry. Have you 22 submitted the color corrected copy? I noticed the one that 23 I have in my records does not match the one you have in 24 your overhead. 25 MR. BRANDT: Yes. And we served it on everybody, CAPITOL REPORTERS (916) 923-5447 6306 1 yes. 2 MS. ZOLEZZI: Because we utilized the one that they 3 served as the correct. 4 MR. BRANDT: I have extras here. 5 MS. WHITNEY: May I get two? 6 MS. ZOLEZZI: Should we proceed with cross? 7 MR. BRANDT: I think that's probably -- 8 C.O. CAFFREY: Let's go off the record for just a 9 minute. Ms. Leidigh. 10 (Off the record from 9:46 a.m. to 9:47 a.m.) 11 C.O. CAFFREY: All right. We're back on the record. 12 Mr. Delamore has not arrived I take it. Let me ask by a 13 showing of hands, all at once hopefully, which of the 14 parties wish to cross-examine this witness? Ms. Cahill. 15 Let's see, Ms. Zolezzi, I can't see behind you. 16 Mr. Minasian, Mr. Herrick, Mr. Birmingham, Mr. Nomellini. 17 MR. BRANDT: By the way, me, too. 18 C.O. STUBCHAER: Mr. Ploss -- I mean Mr. Brandt. 19 C.O. CAFFREY: Mr. Brandt. We'll let Mr. Brandt go 20 first, Mr. O'Laughlin, Mr. Gallery. I got -- let me read 21 who I have. 22 MEMBER BROWN: Mr. Minasian. 23 C.O. CAFFREY: I got Mr. Minasian. Sir, what is your 24 name, I'm sorry? 25 MR. HASENCAMP: Hasencamp. CAPITOL REPORTERS (916) 923-5447 6307 1 C.O. CAFFREY: Hasencamp, I knew that, thank you, 2 sir. I just wanted to see if you remembered. All right. 3 Let me read the names and if I missed anybody, please, 4 raise your hand. I have in this order: Brandt, Cahill, 5 Minasian, Herrick, Birmingham, Nomellini, O'Laughlin, 6 Gallery, Hasencamp. Did I miss anybody or leave anybody 7 out? 8 All right, Mr. Brandt, you may proceed, sir. 9 ---oOo--- 10 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 11 BY THE DEPARTMENT OF THE INTERIOR 12 BY ALF BRANDT 13 MR. BRANDT: Mr. Ploss, I'd just like to do some 14 general questions and then follow up with a couple of 15 specific questions that are follow up to what -- to clarify 16 some questions Ms. Zolezzi asked you. 17 First of all, I'd like to hand you Department of 18 the Interior's Exhibit 4-4 as a whole, which includes the 19 graphs that Ms. Zolezzi showed you before. I'd like you to 20 take a look at that, your written testimony and everything 21 except for 4-A. 22 Is that -- is that package of testimony, package 23 of testimony that you had prepared? 24 MR. PLOSS: This is the testimony that was prepared 25 under my direction and with my involvement, yes. CAPITOL REPORTERS (916) 923-5447 6308 1 MR. BRANDT: Okay. And could you, please, summarize 2 that testimony for me please, quickly? 3 MR. PLOSS: I'll begin by saying that the operation 4 of the New Melones Project has proven to be a cost -- 5 MS. ZOLEZZI: Excuse me, I'd like to object before he 6 begins. 7 C.O. CAFFREY: Excuse me, Mr. Ploss. Ms. Zolezzi? 8 MS. ZOLEZZI: If this is going to be a different set 9 of testimony, we may want an opportunity to cross-examine 10 based on this testimony to clarify. 11 C.O. CAFFREY: Is this cross-examination, or is 12 this -- 13 MR. BRANDT: The reason -- excuse me. 14 C.O. CAFFREY: I mean this might be more 15 appropriately -- if it's going to be testimony, maybe it's 16 redirect later on, maybe it's something else. I'm not 17 sure. 18 MS. LEIDIGH: It's rebuttal. 19 MR. BRANDT: The reason that we're doing it this way 20 is that it developed as part of discussions with 21 Ms. Zolezzi and Ms. Harrigfeld about what the questions 22 were going to be. They were referring to a number of 23 things in here, a number of the exhibits. It was about all 24 the information that was in here, the interim plan, it was 25 just all this testimony basically. CAPITOL REPORTERS (916) 923-5447 6309 1 And so that's why it made sense at this point to 2 just sort of say, if we're going to be cross-examined we 3 might as well get it in there and get it over with. And I 4 think if you would like to cross-examine, I wouldn't have a 5 problem with that, having her cross-examine on this, too. 6 But we might as well get this over with. 7 Otherwise, we'll have this back and we'll go through this 8 whole process again. So it's to save time at this point, 9 because a number of these things were already -- they've 10 already been used in this hearing earlier this morning, a 11 number of these graphs and interim plan and those kinds of 12 things. And this is all about the interim plan, it's all 13 factual evidence about the interim plan. And that's why it 14 makes sense to do it at this time. 15 C.O. CAFFREY: Mr. O'Laughlin? 16 MR. O'LAUGHLIN: Well, needless to say, it's always 17 surprising coming here on Monday mornings. 18 C.O. CAFFREY: Not for me. 19 MR. O'LAUGHLIN: Originally, we were going to be 20 somewhat limited to Mr. Ploss and the testimony by 21 Mr. Ploss and the questions that we had seen that were 22 coming from Stockton East to Mr. Ploss based on the 23 Stockton East Water District, I would have to say to the 24 Chair that right now I'm not prepared to go in and prepare 25 a cross-examination on that document that Mr. Brandt would CAPITOL REPORTERS (916) 923-5447 6310 1 like to have 2 Mr. Ploss be cross -- be cross-examined on at this time, 3 because my understanding is that was going to be coming 4 back in in II-A and not at this time. 5 And I don't know who else in the audience would be 6 prepared to go forward on cross-examination of Mr. Ploss 7 based on II-A. That's more -- and I realize the concern of 8 Mr. Brandt wanting to get it done and out of way, but right 9 now Mr. Ploss will be back in II-A. That testimony fits in 10 with II-A. It would be better, rather than opening up that 11 can of worms right now, that we put that off for II-A and 12 try to stay focused on this salinity issue in the South 13 Delta. 14 C.O. CAFFREY: All right. Thanks, Mr. O'Laughlin. 15 Ms. Zolezzi? 16 MS. ZOLEZZI: Yeah. I would just echo that, because 17 I know we have extensive cross-examination on Mr. Ploss's 18 testimony in that phase. We have referenced I believe just 19 two items in that packet of information. The first is the 20 graph which Mr. Ploss testified to today that he prepared. 21 So I think that's sufficient foundation for that document. 22 The interim plan of operation, I believe, has also 23 been submitted as exhibits by other parties. And we could 24 submit it independently so it could be removed from the 25 testimony of Mr. Ploss if that would make it easier. CAPITOL REPORTERS (916) 923-5447 6311 1 C.O. CAFFREY: Anybody else? Mr. Nomellini? 2 MR. NOMELLINI: Well, I think that they're so 3 interrelated that it is relevant to get into that 4 particular area. The second time I've had to support you. 5 C.O. CAFFREY: This is a killer. 6 MR. BRANDT: I would like the record marked that 7 there is an agreement between Mr. Nomellini and me. 8 MR. NOMELLINI: This is as far as I'm going though. 9 C.O. CAFFREY: All right. 10 MR. NOMELLINI: But I think that they're so 11 intertwined that I think though it should come in in II-A 12 in some form. I don't know how to separate it. We'll 13 probably get into that in some detail in our 14 cross-examination. So it's a matter of just being fair and 15 letting everybody have an adequate shot at it. And if they 16 need more time, let them have it. 17 C.O. CAFFREY: Thank you, Mr. Nomellini. 18 Mr. Stubchaer, did you have something to add? 19 C.O. STUBCHAER: Well, I'm not going to add, it's a 20 question that I have. When we have witnesses that are 21 called by a party for their direct case and there's no 22 written testimony submitted in advance, how do the other 23 parties have an opportunity to prepare their 24 cross-examination with lead time? I don't know who that is 25 a question of. CAPITOL REPORTERS (916) 923-5447 6312 1 C.O. CAFFREY: How about me? 2 C.O. STUBCHAER: Yeah. Okay. 3 C.O. CAFFREY: Because I have an answer. 4 C.O. STUBCHAER: Okay. 5 C.O. CAFFREY: I think in fairness to all the 6 parties, we have a situation here where the witness has 7 been called in this particular case in chief as an adverse 8 witness, but you also have an exhibit, Mr. Brandt, that at 9 sometime will be offered into the record as part of a case 10 in chief somewhere; is that correct, sir? 11 MR. BRANDT: That is correct. And I was -- 12 C.O. CAFFREY: And I appreciate your efforts to bring 13 dispatch to this proceeding, but I think that the best way 14 to proceed at this point is to limit the scope of your 15 questions, or your presentation this morning to questions 16 that are cross-examining in nature reasonably and 17 relevantly limited to the scope of the testimony this 18 morning. I realize you can go beyond that, but this 19 presentation, I do believe as Mr. O'Laughlin and others 20 have stated, is more appropriate in II-A, or whatever other 21 phase that it relates to as direct testimony, or even as a 22 rebuttal argument later on. I'm not sure which, but that's 23 your call. 24 MR. BRANDT: That's fine. I think actually the way 25 we'll do it, the two things that we're identifying in this CAPITOL REPORTERS (916) 923-5447 6313 1 package were the Exhibit 4-I, as I recall, 4-C and 4-D. 2 And then I think one that is closely related that I will 3 also be cross-examining on is -- there is a chart in here 4 that are the numbers that develop -- that worked into that 5 chart, the bar graph that was put up by Ms. Zolezzi. So 6 based on those I will do some cross-examination on those 7 points, just because they're directly relevant, or they're 8 directly within the scope of what her direct was of this 9 witness. 10 C.O. CAFFREY: All right. Why don't you proceed and 11 let's see where it takes us and see how the other parties 12 feel about it as we go along here. And then we'll also 13 have to deal with how do we handle those exhibits, in whole 14 or in part, when we get to the end of this case in chief. 15 So go ahead, Mr. Brandt. 16 MR. BRANDT: Mr. Ploss, can you -- are you -- you 17 were involved in developing the Interim Plan of Operations 18 for the New Melones Reservoir; is that correct? 19 MR. PLOSS: That's correct. 20 MR. BRANDT: Can you tell me the process that the 21 Interim Plan of Operations was developed? 22 MR. PLOSS: Because of the ongoing conflicts with how 23 New Melones Reservoir is operated plus the new demands on 24 the project for meeting obligations of the Central Valley 25 Project Improvement Act, biological opinions for the Delta CAPITOL REPORTERS (916) 923-5447 6314 1 smelt and also demands of the new Bay-Delta Water Quality 2 Control Plan, it was obvious that we needed to reevaluate 3 the operations of New Melones. 4 We conducted some long-term historic studies by 5 superimposing the current obligations onto the historic 6 record, determined the balancing of the water resources and 7 through a stakeholder process of nearly I would say 18 8 months developed what we call the Interim Operations Plan, 9 which was for the 1980 -- or 1996/'97 operating season. 10 MR. BRANDT: Can you tell me how many stakeholders 11 were involved in the development of the stakeholder process 12 that you just described? 13 MR. PLOSS: We didn't specify membership in the 14 stakeholder process. It was an open process. At some 15 occasions there may be as many as 30 or 40 people that 16 attended representing water user interests along the 17 Stanislaus River, CVP contractors, exporters, Federal and 18 State resource agencies, environmental organizations. 19 MR. BRANDT: So you did not close it, you did not 20 identify or specify who would and who would not be in the 21 stakeholder process; is that correct? 22 MR. PLOSS: No, it was an open process. 23 MR. BRANDT: And did each of the stakeholders choose 24 to come during that process, what was their stake in this 25 process? CAPITOL REPORTERS (916) 923-5447 6315 1 MR. PLOSS: Various stakes. We had, certainly, CVP 2 contractors there. There were water right holders that 3 predate the New Melones Project. We had fishery agencies, 4 both Federal and State. We had environmental organizations 5 that had a longstanding interest in the Stanislaus River, 6 representatives from the counties that attended. Each had 7 their own interests, their own stake in how New Melones may 8 be operated. 9 MR. BRANDT: And so each of them had a different view 10 of how the use of New Melones water should be used, is that 11 accurate? 12 MR. PLOSS: Certainly. Certainly, each had a 13 different view. 14 MR. BRANDT: And drawing your attention to 4-C, which 15 I think Ms. Zolezzi showed you before, and to 4-H, is 4-H 16 as -- I believe that one was corrected, correct? 17 MR. PLOSS: Yes. 18 MR. BRANDT: 4-H was corrected, yes. Is 4-H the 19 table that shows the actual numbers of allocation that 20 enter -- created -- turned into the graph that is 4-C? 21 MR. PLOSS: That is correct. 22 MR. BRANDT: Okay. And these are during -- are these 23 during years that the Interim Plan of Operations was in 24 effect? 25 MR. PLOSS: 1996 and 1997 the Interim Operations Plan CAPITOL REPORTERS (916) 923-5447 6316 1 was in effect. The years preceding that, 1991 through 1995 2 was during the drought period. 3 MR. BRANDT: Okay. And how were these numbers 4 during -- before the Interim Plan of Operations were done, 5 how were those allocations determined? 6 MR. PLOSS: This was a determination that the Bureau 7 of Reclamation made through its operation planning with 8 input from the State and Federal fishery agencies, also 9 input from downstream interests including South Delta Water 10 Agency, the water right holders on the Stanislaus River as 11 well as the CVP contractors. It was not a stakeholder 12 process, but it was an ongoing consultation with those 13 people that had a direct -- I'll say a direct interest in 14 the operation of New Melones. 15 MR. BRANDT: So both 4-H and 4-C are corrected, the 16 corrected versions that you're referring to, those are the 17 ones that are accurate that have been provided, right? 18 MR. PLOSS: Yes, these are accurate portraying the 19 actual operations and the budgeting of the water that took 20 place -- or, in fact, not the budgeting of the water but 21 the actual records of how the water was released during 22 those years. 23 MR. BRANDT: Can you just tell me what was the 24 inaccuracy in the earlier version? 25 MR. PLOSS: I can't recall right now what the CAPITOL REPORTERS (916) 923-5447 6317 1 inaccuracy was in our earlier testimony that was submitted. 2 MR. BRANDT: Was it that there was water quality -- 3 it was identified for water quality at Ripon? 4 MR. PLOSS: I believe so. We had incorrectly 5 identified the water quality as being at Ripon and not 6 Vernalis. 7 MR. BRANDT: Okay. Thank you. You testified during 8 Ms. Zolezzi's questions about the Bureau's view of the area 9 of origin. Let me first ask you: Were you referring to 10 area of origin under the California law, or particularly 11 for New Melones under the requirements of the authorizing 12 statute for New Melones to take care of an area of origin? 13 MR. PLOSS: This represented the authorization for 14 New Melones that we would recognize that those counties 15 would have a preference to water before the New Melones 16 Project. 17 MR. BRANDT: And does the Bureau recognize the area 18 of origin rights for parties in the area of origin who wish 19 to get a new appropriation that they get a senior right if 20 they go in and see to their own appropriation; is that 21 correct? 22 MR. PLOSS: That's correct. If a party wants to seek 23 a water right in any basin where we operate, under State 24 law they would have a preference to that water right. 25 MR. BRANDT: But you don't run your operations -- CAPITOL REPORTERS (916) 923-5447 6318 1 prioritize who gets water based on area of origin within 2 the project water allocation that you have under your 3 permits; is that correct? 4 MR. PLOSS: That's correct. The Central Valley 5 Project is a federally authorized project, balances the 6 water supply for all project water users as an integrated 7 project with no preference to area. 8 MR. BRANDT: That's the end of my questions. Thank 9 you. 10 C.O. CAFFREY: All right. Thank you, Mr. Brandt. 11 Ms. Cahill, good morning. 12 ---oOo--- 13 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 14 BY THE CITY OF STOCKTON 15 BY VIRGINIA CAHILL 16 MS. CAHILL: Good morning, Members of the Board. 17 Good morning, Mr. Ploss. Going back to the time that the 18 State Board granted the New Melones permits in Decision 19 1422, Mr. Ploss, do you know whether at that time the 20 Bureau of Reclamation expected that there would be a San 21 Luis drain to help handle salinity in the San Joaquin 22 River? 23 MR. PLOSS: I do not know. 24 MS. CAHILL: Do you have any explanation for the fact 25 that it is taking more water than expected to meet the CAPITOL REPORTERS (916) 923-5447 6319 1 salinity requirements at Vernalis? 2 MR. PLOSS: I can only speculate that hydrologic 3 conditions have changed from what they were when we planned 4 the New Melones Project. That there may be greater 5 consumptive use within the San Joaquin basin and, 6 certainly, there is a difference in possible drainage in 7 the San Joaquin. 8 MS. CAHILL: Do you believe that there's -- there are 9 higher levels of salinity present in the river than was 10 anticipated? 11 MR. PLOSS: Based upon the studies that were done for 12 the authorization of New Melones as we've testified to 13 compared with the decision today, yes, I would say there's 14 greater levels. 15 MS. CAHILL: And, also, would the absence of the 16 drain be a factor? 17 MR. PLOSS: I can't testify to how conditions would 18 be different with or without the drain. 19 MS. CAHILL: Okay. With regard to the colored-bar 20 chart that we had up before, is it accurate to say that 21 water allocated to water quality on that chart will not be 22 available to the New Melones' contractors? 23 MR. PLOSS: That's correct. This is water that's 24 released down the river to meet water quality at Vernalis. 25 MS. CAHILL: Okay. And is it also true that if less CAPITOL REPORTERS (916) 923-5447 6320 1 water were required to meet the water quality standards 2 more water might be available for the contractors? 3 MR. PLOSS: That may be, yes. 4 MS. CAHILL: Okay. And is it also true that if the 5 fish flows were reduced that, in fact, then the water 6 quality requirements might show an increase on that chart? 7 MR. PLOSS: That's correct. 8 MS. CAHILL: I think that's all I have. Thank you. 9 C.O. CAFFREY: Thank you, Ms. Cahill. 10 Mr. Minasian. Good morning, sir. 11 ---oOo--- 12 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 13 BY THE EXCHANGE CONTRACTORS 14 BY PAUL MINASIAN 15 MR. MINASIAN: Thank you. Mr. Ploss, reference was 16 made to a 1972 Environmental Impact Statement of the Army 17 Corps of Engineers in your direct testimony. Do you 18 remember that reference? 19 MR. PLOSS: Yes. 20 MR. MINASIAN: Was there also an environmental impact 21 process in approximately 1980 to 1981 done by the Bureau of 22 Reclamation in regard to the New Melones Project? 23 MR. PLOSS: I don't recall that. 24 MR. MINASIAN: Okay. Do you remember as a result of 25 the State Board's actions in the late 1970's the Secretary CAPITOL REPORTERS (916) 923-5447 6321 1 of Interior undertook a water allocation study and an EIS 2 associated with the water allocation study of the New 3 Melones yield? 4 MR. PLOSS: No, I do not. 5 MR. MINASIAN: Let me show you a couple of documents 6 here. I should have extra copies for the public. Do you 7 see the face sheet entitled "New Melones Lake Stanislaus 8 River Supplement to the Final Environmental Impact 9 Statement Basin Alternatives, Water Allocations Reservoir 10 Operations," Volume I? 11 MR. PLOSS: Yes. 12 MR. MINASIAN: Okay. I'd like to suggest this be 13 marked as Exchange Contractors next in order. And -- 14 C.O. CAFFREY: We'll wait until Ms. Whitney has a 15 chance to refer to the index and see what number we'll give 16 it. 17 MR. MINASIAN: Thank you. 18 MR. BIRMINGHAM: Mr. Caffrey, may I inquire if 19 Mr. Minasian has a few extra copies? 20 C.O. CAFFREY: We have a few up here. Yes, let's 21 give as many copies to the audience as we can. 22 MR. BIRMINGHAM: Thank you. 23 C.O. CAFFREY: In fact, you can -- I can share. 24 We've got a couple up here, probably extra, if anyone wants 25 to share. CAPITOL REPORTERS (916) 923-5447 6322 1 MR. MINASIAN: This would be Exhibit 2, Exchange 2 Contractors' 2. 3 C.O. CAFFREY: All right, sir. 4 MR. MINASIAN: Looking at the face sheet, do you 5 recollect seeing this document in the course of your 6 employment with the Bureau of Reclamation? 7 MR. PLOSS: I have not spent time reviewing this 8 document, I've seen it though. 9 MR. MINASIAN: That takes care of that. Are you 10 aware of what the basin is referred to in the contract of 11 the Stockton East Water District? 12 MR. PLOSS: I believe I do, yes. 13 MR. MINASIAN: Okay. And does the contract to the 14 Stockton East Water District define the basin as an area 15 designated by the Secretary of Interior to be served with 16 permanent water supplies from New Melones to the extent 17 they exist? 18 MR. PLOSS: I'm aware it's defined by the basin to be 19 served. I'm not certain with the last part of your 20 question of permanent supplies. 21 MR. MINASIAN: Okay. There were two types of water 22 contemplated by the Secretary in his contracting policy 23 from New Melones, were there not, interim and long-term 24 supplies, or permanent supplies? 25 MR. PLOSS: Yes. CAPITOL REPORTERS (916) 923-5447 6323 1 MR. MINASIAN: Okay. And is the great majority of 2 the Stockton East Water District outside the basin as 3 defined by the Secretary of Interior? 4 MR. PLOSS: As defined for receiving permanent 5 supplies, yes. 6 MR. MINASIAN: And did the Stockton East Water 7 District accept a contract in about 1983 which was almost 8 entirely interim water supply? 9 MR. PLOSS: Yes. It was a -- what we call a 10 long-term contract for an interim supply. 11 MR. MINASIAN: And you've looked at the terms of the 12 Stockton East Water District contract, have you not? 13 MR. PLOSS: Generally, not specific terms, but I'm 14 familiar with it. 15 MR. MINASIAN: Fine. Let me go on then to another 16 area. You were shown a letter from the Secretary -- from 17 the Commissioner of Reclamation to the Army Corps of 18 Engineers in which he had concluded that there would be 19 little or no affect upon the yield of the New Melones 20 Project from water quality uses of the water. Do you have 21 that letter in mind? 22 MR. PLOSS: That was a letter from the Regional 23 Director to the Corps of Engineers, yes. 24 MR. MINASIAN: At the time of the Regional Director's 25 letter did the Bureau of Reclamation hold water rights at CAPITOL REPORTERS (916) 923-5447 6324 1 the Tracy pumps? 2 MR. PLOSS: Yes. 3 MR. MINASIAN: Okay. And do you know whether or not 4 the Bureau of Reclamation at that time contemplated that 5 water released for water quality would be available at the 6 Tracy pumps for pumping? 7 MR. PLOSS: Yes. 8 MR. MINASIAN: You were asked questions about the 9 water rights of the Bureau of Reclamation and the place of 10 use under the New Melones water rights granted by this 11 Board. At the time those water rights were granted, did 12 the Bureau also hold independent permits for pumping water 13 at the Tracy pumps? 14 MR. PLOSS: Yes. 15 MR. MINASIAN: Okay. And the place of use of that 16 water pumped at the Tracy pump is far broader than San 17 Joaquin County and Stanislaus County, is it not? 18 MR. PLOSS: Yes, it is. 19 MR. MINASIAN: So in your view looking at the records 20 that you've reviewed, was the contemplation of the 21 Secretary of Interior and the Commissioner of Reclamation 22 at the time that they recommended the Army Corps of 23 Engineers to include water quality as one of the purposes 24 of the New Melones Act that the water released for water 25 quality purposes could be recaptured at the Tracy pumps? CAPITOL REPORTERS (916) 923-5447 6325 1 MR. PLOSS: I don't know for certain if that was 2 specifically analyzed in that manner, but the water 3 released for water quality, certainly, would have been 4 considered supply to the Delta that could be pumped, yes. 5 MR. MINASIAN: Now, you were asked about the 6 allocation of water on the bar graph that you provided 7 between water quality and fishery purposes. Is there 8 anything in the contract with the Stockton East Water 9 District which assures the Stockton East Water District 10 that there will not be changes in the operation of the New 11 Melones Project during the interim period in which they 12 were entitled to receive water? 13 MR. PLOSS: Could you be more specific about the 14 "interim period"? 15 MR. MINASIAN: Why don't you look at 2. And why 16 don't we just take a page out of 2. Look at B-24. 17 Although you've not studied the document, which is a final 18 supplemental EIS in regard to the operations of New 19 Melones, do you know that there was, in fact, such a study 20 of alternative ways to provide for the contracting of water 21 for New Melones? 22 MS. ZOLEZZI: Excuse me. Mr. Minasian, could you 23 tell us what page that is? 24 MR. MINASIAN: B-24. 25 C.O. STUBCHAER: Mr. Chairman? CAPITOL REPORTERS (916) 923-5447 6326 1 C.O. CAFFREY: Yes, Mr. Stubchaer. 2 C.O. STUBCHAER: Can you also tell us the date of 3 this document? 4 MR. MINASIAN: I can. I believe you'll find that 5 it's 1981. And I, of course, will serve a copy of the 6 excerpted pages and face sheet upon all the parties. 7 C.O. CAFFREY: Thank you, Mr. Minasian. 8 MR. MINASIAN: Now, are you sufficiently acquainted 9 with this document to tell us whether or not this 10 supplemental EIS was, in fact, completed before the 11 contract was entered into with Stockton East Water 12 District? 13 MR. PLOSS: Yes. 14 MR. MINASIAN: Okay. And so in your years of 15 service, devoted service to the Bureau of Reclamation have 16 you had the opportunity to meet with representatives of the 17 Stockton East Water District? 18 MR. PLOSS: Yes. 19 MR. MINASIAN: And have they affirmed to you that 20 they knew about the contents of this supplemental EIS 21 before they entered into their contract? 22 MR. PLOSS: Specifically whether they knew about this 23 document before they entered into contracts, I can't 24 speculate on that. 25 MR. MINASIAN: Okay. Look at B-24 at the top. You CAPITOL REPORTERS (916) 923-5447 6327 1 might find the screen helpful. I've underlined the first 2 sentence. Do you see that "interim water supply and 3 decreasing quantities should be available for a significant 4 number of years possibly beyond the year 2010"? 5 MR. PLOSS: Yes. 6 MR. MINASIAN: Okay. And was, in fact, there an 7 understanding on the part of the Bureau in the early 1980's 8 that interim water supplies would be decreasing up to 2010 9 and that they might be available beyond, but they might 10 not? 11 MR. PLOSS: Yes, this is our understanding. And how 12 we've approached the contract and the operations is that 13 other demands within the Stanislaus basin may overtake the 14 water supply of the project. 15 MR. MINASIAN: Let's go down to the next underlined 16 language, quote, 17 (Reading): 18 "This interim supply would need to be contracted 19 to subareas which could make immediate and 20 effective use of relatively short-term varying 21 decreasing-type supply possibly for 10 to 22 20 years." 23 Do you see that sentence? 24 MR. PLOSS: Yes. 25 MR. MINASIAN: In your work with the Bureau, although CAPITOL REPORTERS (916) 923-5447 6328 1 you've testified you're not intimately familiar with the 2 work of the Secretary of Interior with this document, have 3 you come into contact with other documents which indicate 4 that the contract to Stockton East for interim water supply 5 was to be a short-term contract decreasing over 10 to 20 6 years? 7 MR. PLOSS: As I testified earlier, I have not read 8 or reviewed in any way the basis of negotiations for 9 entering into those contracts. But it is my understanding 10 that it was contemplated that there would be a decreasing 11 supply from the Central Valley portion of the New Melones 12 Reservoir. 13 MR. MINASIAN: Is it, also, your understanding from 14 your experience and background that an interim supply would 15 generally not to be used to support urban growth? 16 MR. PLOSS: Yes. It would be -- it would be 17 difficult to rely on an interim supply for something as 18 critical as urban demand. 19 MR. MINASIAN: Is there anything in the documents 20 that you've seen in regard to New Melones and the plans for 21 the use of New Melones' water in the years immediately 22 before 1983, when the Stockton East Water District 23 contracted for water which would indicate that it was 24 intended that New Melones be operated as a separate unit 25 for the benefit of Stanislaus and San Joaquin Counties? CAPITOL REPORTERS (916) 923-5447 6329 1 MR. PLOSS: Maybe I'll ask to you repeat that. 2 MR. MINASIAN: Right. You're acquainted with the 3 word "unit" as used by the Bureau, are you not? 4 MR. PLOSS: Yes. 5 MR. MINASIAN: And as used by congress? 6 MR. PLOSS: Yes. 7 MR. MINASIAN: On occasion the congress will adopt an 8 unit like the Orland unit, or a particular area that's 9 suppose to be the sole beneficiary of a project, will they 10 not? 11 MR. PLOSS: That's true. 12 MR. MINASIAN: Okay. Is there anything that you've 13 seen which would indicate an intention to solely benefit 14 the areas of the Stockton East Water District and the 15 Central San Joaquin Water Conservation District within San 16 Joaquin County from New Melones? 17 MR. PLOSS: No. 18 MR. MINASIAN: Nothing further. Thank you. 19 C.O. CAFFREY: All right. Thank you very much, 20 Mr. Minasian. 21 Mr. Herrick, good morning, sir. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 6330 1 ---oOo--- 2 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 3 BY SOUTH DELTA WATER AGENCY 4 BY JOHN HERRICK 5 MR. HERRICK: Good morning. Thank you, Mr. Chairman. 6 Members of the Board, John Herrick for the South Delta 7 Water Agency. Good morning, Mr. Ploss. 8 MR. PLOSS: Good morning. 9 MR. HERRICK: One of the overheads had a description, 10 I think it was that letter, describing how the original 11 intent was to incorporate water quality releases from New 12 Melones but not affect the yield of the project; is that 13 correct? 14 MR. PLOSS: That's correct. 15 MR. HERRICK: Just for clarification, how would you 16 budget an amount of water for water quality without 17 affecting the yield of a project? 18 MR. PLOSS: Under the hydrologic conditions that were 19 used for that analysis it was concluded that water quality 20 could be met up to a release of 70,000 acre-feet without 21 impacting the yield of the project. And that was based on 22 an analysis of the historic data leading up to I think 23 about 1965. 24 MR. HERRICK: There were brief discussions regarding 25 the Interim Operations Plan. And I think we covered this CAPITOL REPORTERS (916) 923-5447 6331 1 in an earlier phase, when the Interim Plan budgets 250,000 2 acre-feet for water quality in a particular year, that's 3 not based on any sort of analysis of the need for water 4 quality in that year, is it? 5 MR. PLOSS: No. That was an attempt at trying to 6 budget water for each of the requirements out of New 7 Melones using the historic hydrologic data that was 8 available. So it was -- by limiting that 250 it was simply 9 trying to balance meeting all the needs. 10 MR. HERRICK: Was there any analysis done at that 11 time with regards to how much would be needed for water 12 quality in any particular year? 13 MR. PLOSS: I don't recall that we did an analysis 14 that would operate the project exclusively for water 15 quality to determine that amount. 16 MR. HERRICK: The Interim Operations Plan has 17 increasing allocations for water quality depending upon 18 inflow to New Melones and storage for that year; is that 19 correct? 20 MR. PLOSS: Yes. It's our expectation that as the 21 water supply improves based on wetter years, that greater 22 amounts would be available for water quality. 23 MR. HERRICK: And, of course, if the water quality -- 24 and, of course, if the water budgeted for water quality in 25 a year is not needed for that purpose it will not be CAPITOL REPORTERS (916) 923-5447 6332 1 released; is that correct? 2 MR. PLOSS: That's correct. 3 MR. HERRICK: And any water not released in any 4 particular year goes back into the overall storage, or the 5 carryover for the following year's calculation; is that 6 correct? 7 MR. PLOSS: Correct. It goes into the mix of the CVP 8 supplies for the following year. 9 MR. HERRICK: As the Chief of Operations for the 10 Bureau, can you give us a reason why insufficient water is 11 available to supply Stockton East and Central San Joaquin 12 Water Conservation District with water in each year? 13 MR. PLOSS: It's because of, first, the competing 14 needs for the water resource as well as first meeting our 15 permit conditions, water quality being one permit 16 condition. Meeting the requirements under the Fish and 17 Game Agreement for fish flows, meeting obligations for 18 Central Valley Project Improvement Act. We also have water 19 rights holders that predate the New Melones Project. And 20 those all have to be met before we can have water for our 21 water service contractors. 22 MR. HERRICK: Isn't it true that in the development 23 of the Interim Operations Plan increased releases for 24 fisheries were -- there were increased releases for 25 fisheries? CAPITOL REPORTERS (916) 923-5447 6333 1 MR. PLOSS: That is correct. As the hydrology gets 2 wetter there would be greater releases for fisheries. 3 MR. HERRICK: And we saw that with water quality 4 releases if you don't need it, you do not release it. Is 5 that true for fishery releases in any particular year? 6 MR. PLOSS: That would be the case. If water is not 7 needed for fishery purposes it would not be released. 8 MR. HERRICK: And the increased fishery flows, were 9 they, at least in part, pursuant to the Delta Accord which 10 was signed by, among other parties, the Bureau of 11 Reclamation? 12 MR. PLOSS: No. The fish releases on the Interim 13 Plan for those releases required for inflow stream 14 conditions on the Stanislaus River. 15 MR. HERRICK: And pursuant to WR 95-6 didn't the 16 Bureau of Reclamation voluntarily try to meet the water 17 quality objectives of the 1995 Water Quality Control Plan? 18 MR. PLOSS: Yes, we did. 19 MR. HERRICK: And as those objectives relate to the 20 measuring point at Vernalis, what source of water did the 21 Bureau attempt to use to meet those flows? 22 MR. PLOSS: We would attempt to use water from the 23 New Melones Project after all the other requirements for 24 New Melones were met. 25 MR. HERRICK: And were there any other sources of CAPITOL REPORTERS (916) 923-5447 6334 1 water used -- or were there any other sources of water 2 looked to in order to try to meet those objectives at 3 Vernalis? 4 MR. PLOSS: Yes. In the past three years under the 5 authorities of the Central Valley Project Improvement Act 6 we purchased water in the basin. 7 MR. HERRICK: But no other CVP projects were used for 8 that purpose? 9 MR. PLOSS: No. 10 MR. HERRICK: One of the exhibits put in front of you 11 was the Memorandum of Understanding between the Bureau and 12 the Regional Board; is that correct? 13 MR. PLOSS: That's correct. 14 MR. HERRICK: And was that Memorandum of 15 Understanding adopted in D-1422 to your knowledge? 16 MR. BRANDT: Calls for a legal conclusion, but -- 17 Strike that. It's really calling for his understanding, as 18 long as it's clear that that's what he's answering to. 19 C.O. CAFFREY: You may answer the question, 20 Mr. Ploss. 21 MR. PLOSS: In Decision 1422 in the State Board's 22 findings they recognize that agreement, but I can't 23 speculate on what was the basis of the Board's order. 24 MR. HERRICK: Were the permits issued pursuant to 25 D-1422 -- excuse me. You're familiar with the New Melones CAPITOL REPORTERS (916) 923-5447 6335 1 permits, aren't you? 2 MR. PLOSS: Yes. 3 MR. HERRICK: And, in fact, we introduced them 4 earlier in a different proceeding as South Delta Exhibits, 5 do you recall that? 6 MR. PLOSS: Yes. 7 MR. HERRICK: For the record South Delta Exhibit 38. 8 Mr. Ploss, do those permits, to your knowledge, incorporate 9 any limitation on the amount of water to be released for 10 downstream water quality purposes? 11 MR. PLOSS: No. 12 MR. HERRICK: And subsequent to those permits being 13 issued, did the Bureau of Reclamation challenge the 14 conditions in those permits in any way? 15 MR. BRANDT: Objection. Vague as to which permits 16 and which time period we're talking about. 17 C.O. CAFFREY: Could you be a little more specific, 18 Mr. Herrick? Thank you, sir. 19 MR. HERRICK: Certainly. Mr. Ploss, I'm referring 20 to -- here, I'll give you a copy of them, New Melones 21 permits 16-597 and 16-600, which are South Delta Exhibit 22 Number 38. Are you generally familiar with those permits? 23 MR. PLOSS: Yes. 24 MR. HERRICK: And those permits were issued pursuant 25 to D-1422; is that correct? CAPITOL REPORTERS (916) 923-5447 6336 1 MR. PLOSS: Correct. 2 MR. HERRICK: And did the Bureau of Reclamation make 3 any objection after those permits were issued? 4 MR. BRANDT: So any time after 1973, just to be 5 clear? 6 MR. HERRICK: At any time has the Bureau challenged 7 or objected to the conditions in those permits? 8 MR. PLOSS: I believe there was a challenge, but I 9 don't know the specifics. 10 MR. HERRICK: Okay. And to your knowledge the terms 11 and conditions set forth in those permits remain the same 12 accepting any change due to WR 95-6? 13 MR. PLOSS: I believe so, yes. 14 MR. HERRICK: Mr. Ploss, would you turn to number -- 15 MR. BRANDT: If I could, I think that last question 16 needs to be clarified, Mr. Herrick. If I could ask 17 specifically, because there were -- 18 C.O. CAFFREY: You have a question of Mr. Herrick? 19 MR. BRANDT: I have a question of Mr. Ploss if 20 Mr. Herrick would be so kind to clarify. 21 Were some of the agreements that were identified 22 in D-1422 later amended and amended into the permits, for 23 example, the Fish and Game Agreement? 24 MR. PLOSS: I know the Fish and Game Agreement was 25 amended. I'm not aware of any others. CAPITOL REPORTERS (916) 923-5447 6337 1 MR. BRANDT: Just want to make sure, there were 2 others. I just want to make sure we're clear for the 3 record. 4 MR. HERRICK: Certainly. Could you look at Number 5 19, there's a page number there, Provision Number 19, I 6 believe. You're on that right page? 7 MR. PLOSS: Yes. 8 MR. HERRICK: The last paragraph of 19 reads, 9 (Reading): 10 "In the event that the Water Quality Control 11 Plan," parens, "interim," closed parens, "is 12 amended or superseded," comma, "the foregoing 13 water quality objectives shall be modified to 14 conform to the then current criteria." 15 Do you see where I have -- 16 MR. PLOSS: Yes, I do. 17 MR. HERRICK: Mr. Ploss, do you have an opinion as to 18 whether or not, then, the Bureau's obligation to meet the 19 Vernalis water quality standard for agricultural objectives 20 automatically changes if the Water Quality Control Plan is 21 changed? 22 MR. PLOSS: I don't believe that it automatically 23 changes. The Water Quality Control Plan did change and we 24 did petition to have the modification made. 25 MR. HERRICK: Mr. Ploss, you're aware that the case CAPITOL REPORTERS (916) 923-5447 6338 1 in chief for the Department of Interior for this phase, 2 Phase V, included testimony by Mr. Vandenberg and 3 Mr. Oltmann, correct? 4 MR. PLOSS: Yes. 5 MR. HERRICK: Do you know whether or not the Bureau 6 of Reclamation has any proposal regarding the 7 implementation of the tidal barriers in the South Delta as 8 a means of meeting the South Delta interior water quality 9 objectives? 10 MR. PLOSS: We are a part of -- or sponsor of the 11 project, the Interim South Delta Plan with the Department 12 of Water Resources, yes. 13 MR. HERRICK: And do you know whether or not the 14 Bureau of Reclamation has any recommendations with regards 15 to addressing the San Joaquin River salinity issues which 16 are also part of this phase? 17 MR. PLOSS: I'm not certain if I'm qualified to 18 testify to that. 19 MR. HERRICK: Does the Bureau of Reclamation have any 20 position on whether or not its obligation to meet Vernalis 21 water quality standards should or should not be altered? 22 MR. PLOSS: We haven't taken any position on it, no. 23 MR. HERRICK: I'm almost done, Mr. Chairman. I 24 apologize for messing up everybody's break here. 25 C.O. CAFFREY: That's all right. If you're just CAPITOL REPORTERS (916) 923-5447 6339 1 going to take a few more minutes, we'll just keep going and 2 we'll break after you're finish. 3 MR. HERRICK: Mr. Ploss, on the first page of South 4 Delta 38, the permits for New Melones, would you agree that 5 at the bottom there that the place of use for water quality 6 purposes extends passed San Joaquin County? 7 MR. PLOSS: Yes, it does. 8 MR. HERRICK: Does the Bureau of Reclamation make any 9 releases from New Melones for the purposes of maintaining 10 X2? 11 MR. PLOSS: We make releases from New Melones to 12 maintain X2 after all of the other requirements for New 13 Melones are met. 14 MR. HERRICK: And would that mean fully meeting the 15 water quality requirement at Vernalis? 16 MR. PLOSS: We attempt to meet the water quality 17 objectives, or the water quality standards at Vernalis, 18 yes. 19 MR. HERRICK: Does that mean there could be an 20 instance where you don't meet the water quality standard at 21 Vernalis but you do make additional releases for X2? 22 MR. PLOSS: No. 23 MR. HERRICK: I have no further he questions. Thank 24 you very much. 25 C.O. CAFFREY: Thank you, Mr. Herrick. We'll take a CAPITOL REPORTERS (916) 923-5447 6340 1 break and when we come back we'll go to Mr. Birmingham's 2 cross-examination. Thank you. 3 (Recess taken from 10:36 a.m. to 10:52 a.m.) 4 C.O. CAFFREY: All right. We're back. Good morning, 5 Mr. Birmingham. 6 ---oOo--- 7 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 8 BY WESTLANDS WATER DISTRICT 9 BY THOMAS BIRMINGHAM 10 MR. BIRMINGHAM: Good morning, Mr. Caffrey and 11 Members of the Board. Mr. Ploss, I believe we've met 12 before. My name is Tom Birmingham. I'm the attorney that 13 represents Westlands Water District. 14 MR. PLOSS: Yes. 15 C.O. CAFFREY: You both have the scars to prove it, 16 is that the idea? 17 MR. BIRMINGHAM: Before I begin my examination of 18 Mr. Ploss, I am informed that during Phase IV 19 Mr. Hasencamp, who is an engineer with Contra Costa Water 20 District, failed -- actually, he identified his statement 21 of qualifications during his testimony, but Mr. Maddow 22 failed to make an offer of Contra Costa Exhibit 1-D, which 23 is a statement of Mr. Hasencamp's qualifications. At this 24 time Westlands Water District would like to move for the 25 admission of Contra Costa Exhibit 1-D. CAPITOL REPORTERS (916) 923-5447 6341 1 C.O. CAFFREY: That's very good of you, 2 Mr. Birmingham. I'm sure Mr. Hasencamp appreciates that. 3 And is there any objection to accepting into the record 4 that evidentiary exhibit which apparently was left out as 5 an oversight? Hearing and seeing no objection it is 6 accepted and incorporated into the record. 7 Thank you, Mr. Birmingham. 8 MR. BIRMINGHAM: Thank you. Mr. Ploss, during her 9 examination of you Ms. Zolezzi made reference to Public Law 10 87-874. Do you recall that question? 11 MR. PLOSS: Yes. 12 MR. BIRMINGHAM: And she had an overhead which 13 indicated that Public Law 87-874 directed that the 14 Secretary of the Army should conduct a study to determine 15 the feasibility of using New Melones Reservoir as a means 16 of meeting water quality standards in the lower San Joaquin 17 River. Do you recall that question? 18 MR. PLOSS: Yes, it isn't exactly the words, but, 19 yes, I do. 20 MR. BIRMINGHAM: Is it correct that the Bureau of 21 Reclamation is authorized by Federal law to operate New 22 Melones Reservoir as a means of achieving water quality 23 objectives for the lower San Joaquin River? 24 MR. PLOSS: Yes. It's authorized as a multipurpose 25 project. CAPITOL REPORTERS (916) 923-5447 6342 1 MR. BIRMINGHAM: And isn't it correct that if Federal 2 law did not authorize the use of the project for that 3 purpose, under some circumstances the Bureau of Reclamation 4 would not be permitted to operate New Melones Reservoir as 5 a means of achieving water quality standards in the lower 6 San Joaquin River? 7 MR. PLOSS: That's true. 8 MR. BIRMINGHAM: Ms. Zolezzi also asked you a number 9 of questions concerning Water Rights Decision 1422. Do you 10 recall those questions? 11 MR. PLOSS: Yes. 12 MR. BIRMINGHAM: And am I correct, Mr. Ploss, that 13 you have read Decision 1422? 14 MR. PLOSS: Yes, I have. 15 MR. BIRMINGHAM: Is it correct that Decision 1422 is 16 a decision of the State Water Resources Control Board that 17 was issued in April of 1973? 18 MR. PLOSS: Yes. 19 MR. BIRMINGHAM: Now, specifically, Ms. Zolezzi asked 20 you a number of questions concerning the discussion 21 contained in Decision 1422 concerning the agreement between 22 the California Regional Water Quality Control Board, 23 Central Valley Region and the Bureau of Reclamation 24 concerning the release of water to maintain water quality 25 standards at Vernalis. Do you recall those questions? CAPITOL REPORTERS (916) 923-5447 6343 1 MR. PLOSS: Yes. 2 MR. BIRMINGHAM: She asked you to refer to Page 5 and 3 Page 6 of the Decision with respects to the statements 4 contained on Page 5 that the Bureau, under its agreement 5 with the California Regional Water Quality Control Board, 6 Central Valley Region plans to release up to 70,000 7 acre-feet of water in any one year as required to maintain 8 a mean monthly TDS concentration in the San Joaquin River 9 below the mouth of the Stanislaus River at 500 parts per 10 million maximum. 11 Do you recall that question? 12 MR. PLOSS: Yes, I do. I believe you had the page 13 number wrong. 14 MR. BIRMINGHAM: Excuse me. What is the page number? 15 MR. PLOSS: Page 11. 16 MR. BIRMINGHAM: I beg your pardon. And then 17 Ms. Zolezzi asked you about the statement contained in 18 Water Rights Decision 1422 that it was the expectation of 19 the Bureau of Reclamation that releases required to meet 20 water quality objectives would not exceed 70,000 acre-feet 21 maximum until the year 2075. 22 Do you recall her asking you that question 23 concerning Decision 1422? 24 MR. PLOSS: Yes. 25 MR. BIRMINGHAM: Now, isn't it correct, Mr. Ploss, CAPITOL REPORTERS (916) 923-5447 6344 1 that when the State Water Resources Control Board made the 2 statements to which I just referred, the State Water 3 Resources Control Board was reciting the position of the 4 Bureau of Reclamation? 5 MR. PLOSS: Yes, these are part of the findings of 6 the Board. 7 MR. BIRMINGHAM: Well, that's my question, Mr. Ploss, 8 they are statements by the Board concerning the position of 9 the Bureau of Reclamation; isn't that correct? 10 MR. PLOSS: That's correct. 11 MR. BIRMINGHAM: And, in fact, further on in Water 12 Rights Decision 1422, in fact, in the next paragraph isn't 13 it correct that the State Water Resources Control Board 14 says: 15 (Reading): 16 "However, the ability of the agreed upon 17 releases to accomplish the water quality 18 objectives depends upon the assumption that the 19 mean TDS concentration of water released from 20 the New Melones Reservoir will be 50 parts per 21 million; and that the relationship between flow 22 and TDS established at Vernalis by the U.S. 23 Public Health Service," paren, Staff Exhibit 11, 24 end paren, "will continue." 25 Did I read that accurately? CAPITOL REPORTERS (916) 923-5447 6345 1 MR. PLOSS: Yes, you did. 2 MR. BIRMINGHAM: And then isn't it correct that the 3 State Water Resources Control Board goes on to state in 4 Decision 1422, "These assumptions may not be valid"? 5 MR. PLOSS: Yes. 6 MR. BIRMINGHAM: And later on in the same paragraph 7 isn't it correct that the State Water Resources Control 8 Board states with respect to the Bureau's analysis 9 concerning the water required, the releases required to 10 meet water quality standards at Vernalis, "There is little 11 basis for concluding that the flow versus TDS relationship 12 at Vernalis is stable on a long-term basis"? 13 MR. PLOSS: That's correct. 14 MR. BIRMINGHAM: And then the Board also states, 15 (Reading): 16 "Also a problem in predicting the effect of 17 releases of project water on water quality is the 18 failure of the Bureau to specifically designate 19 the place and method of using the conservation 20 yield of the project." 21 MR. PLOSS: Yes. 22 MR. BIRMINGHAM: And, then, isn't it correct, 23 Mr. Ploss, that further on on Page 13 of D-1422 the State 24 Board concludes its analysis of water quality issues by 25 stating, CAPITOL REPORTERS (916) 923-5447 6346 1 (Reading): 2 "In view of the uncertainty inherent in the 3 problem of proper releases to protect water 4 quality, any permits issued pursuant to subject 5 applications should contain an interim term 6 until further studies are made requiring 7 releases of conserved water from New Melones, 8 which will maintain a mean monthly TDS 9 concentration in the San Joaquin River at 10 Vernalis of 500 parts per million or less; and a 11 DO concentration in the Stanislaus River as 12 specified in the Interim Water Quality Control 13 Plan. The Board should reserve jurisdiction 14 over the permits for the purpose of revising 15 water release requirements for water quality 16 objectives." 17 MR. PLOSS: That's correct. 18 MR. BIRMINGHAM: So isn't it correct, Mr. Ploss, that 19 in Decision 1422 the State Water Resources Control Board 20 refused to adopt the agreement between the Bureau of 21 Reclamation and the Regional Water Quality Control Board 22 for the Central Valley Region concerning the maximum amount 23 of water that would be released to maintain water quality 24 standards at Vernalis? 25 MR. PLOSS: It appears so by the Board's order, yes. CAPITOL REPORTERS (916) 923-5447 6347 1 MR. BIRMINGHAM: And, in fact, the permits that were 2 issued -- let me ask a preliminary question. 3 Isn't it correct, Mr. Ploss, that the order which 4 is part of Decision 1422 does not limit the amount of water 5 which the Bureau of Reclamation is required to release in 6 order to maintain the water quality standards at Vernalis? 7 MR. PLOSS: That's correct. 8 MR. BIRMINGHAM: In fact, paragraph five of the Order 9 states, 10 (Reading): 11 "Releases of conserved water from New Melones 12 Reservoir for water quality control purposes 13 shall be scheduled so as to maintain a mean 14 monthly total dissolved solids concentration in 15 the San Joaquin River at Vernalis of 500 parts 16 per million or less; and the dissolved oxygen 17 concentration in the San Joaquin River as 18 specified in the Water Quality Control Plan," 19 paren, "interim," end paren, "San Joaquin River 20 Basin 5C State Water Resources Control Board, 21 June, 1971." 22 MR. PLOSS: That is correct. 23 MR. BIRMINGHAM: The permits which were issued as a 24 result of D-1422 did not limit the amount of water which 25 the Bureau is required to release from New Melones CAPITOL REPORTERS (916) 923-5447 6348 1 Reservoir to maintain water quality standards at Vernalis, 2 did they, Mr. Ploss? 3 MR. PLOSS: They did not. 4 MR. BIRMINGHAM: Now, you testified a few moments ago 5 that Decision 1422 was issued by the State Water Resources 6 Control Board in 1973? 7 MR. PLOSS: Correct. 8 MR. BIRMINGHAM: Isn't it correct that construction 9 of the New Melones Reservoir was completed by the Bureau of 10 Reclamation in 1979? 11 MR. PLOSS: It was completed by the Corps of 12 Engineers, yes, in 1979. 13 MR. BIRMINGHAM: So is it correct, Mr. Ploss, that 14 notwithstanding the rejection by the State Water Resources 15 Control Board of the agreement between the Bureau and the 16 Regional Board concerning the maximum amount of water that 17 would be released to maintain the water quality standards, 18 the Federal Government decided to go forward with the 19 construction of the project? 20 MR. PLOSS: Yes. 21 MR. BIRMINGHAM: And it did -- the Federal Government 22 made that decision knowing that it may have to release more 23 than 70,000 acre-feet of water in order to maintain water 24 quality standards at Vernalis? 25 MR. PLOSS: It appears so, yes. CAPITOL REPORTERS (916) 923-5447 6349 1 MR. BIRMINGHAM: Ms. Zolezzi asked you a number of 2 questions concerning the permitted place of use for permits 3 held by the Bureau of Reclamation for operation of the New 4 Melones Project. Do you recall those questions, Mr. Ploss? 5 MR. PLOSS: Yes. 6 MR. BIRMINGHAM: And, specifically, she asked you if 7 the place of use was limited to counties including San 8 Joaquin, Stanislaus, Tuolumne and Calaveras County? 9 MR. PLOSS: Yes. 10 MR. BIRMINGHAM: Now, are you familiar, Mr. Ploss, 11 with the operations of the Delta-Mendota Canal? 12 MR. PLOSS: Yes, I am. 13 MR. BIRMINGHAM: And are you familiar with the areas 14 that are served by the Delta-Mendota Canal? 15 MR. PLOSS: Yes. 16 MR. BIRMINGHAM: Isn't it correct, Mr. Ploss, that 17 there are districts with contracts from the -- with the 18 Bureau of Reclamation to receive water from the 19 Delta-Mendota Canal that are within San Joaquin County? 20 MR. PLOSS: Yes, there are. 21 MR. BIRMINGHAM: And isn't it correct that there are 22 districts that have contracts with the Bureau of 23 Reclamation for the delivery of water from the 24 Delta-Mendota Canal that are within Stanislaus County? 25 MR. PLOSS: I believe so. CAPITOL REPORTERS (916) 923-5447 6350 1 MR. BIRMINGHAM: Isn't it correct that a portion of 2 Del Puerto Water District is within Stanislaus County? 3 MR. PLOSS: I don't know specifically. 4 MR. BIRMINGHAM: Mr. Ploss, is it correct that as 5 originally planned New Melones Reservoir was to be a 6 portion of a Reclamation unit referred to as the East Side 7 Division? 8 MR. PLOSS: Yes. 9 MR. BIRMINGHAM: Can you, please, describe for me 10 other facilities that were intended to be part of the East 11 Side Division? 12 MR. PLOSS: I believe that it included extension of 13 the Folsom South Canal. 14 MR. BIRMINGHAM: And the expectation was that Folsom 15 South Canal would be extended to deliver water from the 16 American River to portions of San Joaquin County? 17 MR. PLOSS: Yes. 18 MR. BIRMINGHAM: And at the time that the East Side 19 Division was being planned, was there an expectation that a 20 dam would be constructed by the Bureau of Reclamation at 21 Auburn? 22 MR. PLOSS: Yes. 23 MR. BIRMINGHAM: And that water impounded by that 24 dam -- water impounded by the dam at Auburn would be used 25 to supply water to areas of San Joaquin County via the CAPITOL REPORTERS (916) 923-5447 6351 1 extended Folsom South Canal? 2 MR. PLOSS: That's correct. 3 MR. BIRMINGHAM: Do you want to stop? 4 MR. BRANDT: Yeah. 5 MR. BIRMINGHAM: Excuse me, Mr. Chairman, 6 Mr. Delamore has just arrived. And I believe that 7 Mr. Brandt wanted to interrupt the cross-examination so -- 8 MR. BRANDT: Why don't we finish Mr. Birmingham's -- 9 MR. BIRMINGHAM: I'll be here for a while. 10 MR. BRANDT: Let's finish yours and then we'll see 11 what we need to do. Mr. Delamore, just for the record, is 12 not available tomorrow and that's why we're hoping to get 13 him done today. 14 C.O. STUBCHAER: Mr. Chairman? 15 C.O. CAFFREY: Yes, Mr. Stubchaer. 16 C.O. STUBCHAER: I wonder what Mr. Birmingham's 17 definition of "I'll be here awhile" is. 18 MR. BIRMINGHAM: I'll probably be here until noon 19 today. And if there's a concern about finishing 20 Mr. Delamore today I wonder if it wouldn't be -- 21 C.O. CAFFREY: How would you -- it was your original 22 intention, Mr. Brandt, to have both gentlemen here more or 23 less as a panel so they could be cross-examined 24 simultaneously? 25 MR. BRANDT: Yes. CAPITOL REPORTERS (916) 923-5447 6352 1 C.O. CAFFREY: We could go to Mr. Delamore now and 2 see if the previous cross-examiners have any additional 3 questions, or if there are any additional cross-examiners 4 as a result of this. 5 MR. BRANDT: We'll need to do direct, too. 6 MR. O'LAUGHLIN: There has to be direct. 7 C.O. CAFFREY: Yeah, of course. So is there any 8 objection then to taking Mr. Delamore out of order here? 9 If we give him that deference, does that cause problems for 10 others? Mr. O'Laughlin? 11 MR. O'LAUGHLIN: Just with the understanding that I 12 have no objection to it, but I realize Mr. Delamore might 13 not be available tomorrow. But the way things are running, 14 he may have to be bumped into the following week. Even if 15 we start him today there's no understanding that we will 16 finish him today. We will try to, but he may bump into 17 next week anyway. 18 C.O. CAFFREY: An interesting and somewhat astute 19 observation, because we find that that happens around here 20 from time to time, we'll accommodate and it doesn't work 21 anyway. 22 Which leads me to the next question, let me ask 23 Mr. Nomellini, Mr. O'Laughlin, Mr. Gallery and 24 Mr. Hasencamp: What kind of time do you think you're going 25 to need? We don't hold you to it. We know it depends on CAPITOL REPORTERS (916) 923-5447 6353 1 how long the answers take, but if you have any kind of an 2 estimate, is it going to be lengthy? 3 MR. NOMELLINI: We need about an hour. 4 C.O. CAFFREY: Okay, about an hour there. 5 Mr. O'Laughlin, did you have any thoughts on how 6 long you thought yours might take? 7 MR. O'LAUGHLIN: 10 minutes. 8 C.O. CAFFREY: 10 minutes. Mr. Gallery? 9 MR. GALLERY: 20 minutes. 10 C.O. CAFFREY: 20 minutes. Mr. Hasencamp, are you in 11 the room, sir? There you are. 12 MR. HASENCAMP: Five minutes. 13 C.O. CAFFREY: Five minutes. It might make some 14 sense just to proceed with this. We'd get to Mr. Delamore 15 under that scenario about 3:00 this afternoon. Go ahead. 16 C.O. STUBCHAER: Mr. Chairman, a question. Were the 17 answers on how long it was going to take directed to 18 Mr. Ploss, or to Mr. Delamore, or both? 19 MR. O'LAUGHLIN: Mr. Ploss. 20 C.O. STUBCHAER: Mr. Ploss, that's what I thought. 21 So I think, Mr. Chairman, we ought to interrupt now and try 22 and finish Mr. Delamore. 23 C.O. CAFFREY: All right. All right, we'll do that. 24 Thank you for your indulgence, Mr. Birmingham. Let's get 25 Mr. Delamore up here and Ms. Zolezzi and Ms. Harrigfeld. CAPITOL REPORTERS (916) 923-5447 6354 1 Mr. Delamore, have you taken the oath earlier in 2 this procedure? 3 MR. DELAMORE: No, I have not. 4 C.O. CAFFREY: I don't recognize you, sir, so I guess 5 you haven't. Please, raise your right hand. Do you 6 promise to tell the truth in these proceedings? 7 MR. DELAMORE: Yes, I do. 8 C.O. CAFFREY: Thank you, sir. Please, be seated. 9 Ms. Zolezzi, go ahead. 10 ---oOo--- 11 STOCKTON EAST WATER DISTRICT 12 DIRECT TESTIMONY 13 MS. ZOLEZZI: Good morning, Mr. Delamore. We 14 understand you had an interesting time getting here today. 15 MR. DELAMORE: I was well on my way being here on 16 time. 17 MS. ZOLEZZI: Well, thank you for making the effort. 18 Could you provide for the record a summary of your position 19 with the Bureau of Reclamation? 20 MR. DELAMORE: Currently I'm Chief of the San Joaquin 21 drainage office located in Fresno. For approximately 22 almost the last ten years I've had supervisory and program 23 responsibility for the Bureau's drainage activities in the 24 San Joaquin Valley. 25 MS. ZOLEZZI: Are you familiar with the litigation CAPITOL REPORTERS (916) 923-5447 6355 1 filed in 1992 by Sumner Peck Ranch, et al., against the 2 Bureau of Reclamation and Westlands Water District? 3 MR. DELAMORE: Yes. 4 MS. ZOLEZZI: Are you familiar with Stockton East 5 Water District's Exhibit 15, which is the findings of fact 6 and conclusions of law of Judge Wanger in the Sumner Peck 7 litigation? 8 MR. DELAMORE: Yes, I'm aware of and somewhat 9 familiar with the findings. 10 MS. ZOLEZZI: Are you aware that in the litigation in 11 those findings of fact and conclusions of law the Court 12 found that the Government has acknowledged that it halted 13 construction of the San Luis drain when questions and 14 concerns were raised in 1975 in the public arena? 15 MR. BRANDT: I just want to object for the record to 16 the extent this calls for a legal conclusion, I object. I 17 want to make it clear here that he is explaining what his 18 understanding of what happened was, but not making any 19 legal conclusions. 20 C.O. CAFFREY: I'm sorry, I didn't hear the last part 21 of what you said, Mr. Brandt. 22 MR. BRANDT: He is explaining his understanding of 23 what happened at the court was, but not a legal conclusion 24 as to what actually the findings were, or anything along 25 those lines, because those documents would speak for CAPITOL REPORTERS (916) 923-5447 6356 1 themselves. 2 C.O. CAFFREY: Thank you, sir. We understand. 3 Mr. Birmingham? 4 MR. BIRMINGHAM: Also, I noticed that Ms. Zolezzi is 5 going to offer this exhibit by reference. And I wonder if 6 in light of earlier rulings that in order for it to be 7 offered by reference the document has to be in the State 8 Board's files, if she can identify where in the State Board 9 files it is located. 10 MS. ZOLEZZI: We're not offering it by reference 11 because it's in the State Board files, it's a public 12 document. And we provided a copy of the document to the 13 State Board in accordance with the regulation. 14 MR. BIRMINGHAM: To my knowledge, no copy has been 15 provided to the parties. 16 MS. ZOLEZZI: My understanding of the State Board 17 Regulations is that it does not have to be. And 18 Ms. Leidigh can correct me if I'm wrong and we'll do that. 19 C.O. CAFFREY: We'll hear from Ms. Leidigh in a 20 moment. Are you ready, Ms. Leidigh, to -- 21 MS. LEIDIGH: Well, I'm not quite sure what 22 regulation it is that allows them to give the State Board a 23 copy of the document and then proceed to offer it in 24 evidence by reference. 25 Perhaps, what she really wants to do is to offer CAPITOL REPORTERS (916) 923-5447 6357 1 it for official notice, or something like that. It still 2 doesn't mean that she doesn't have to provide copies. 3 So -- although, I think she can probably cite this document 4 since it's a court decision, unless it's not published. I 5 don't know, is this a published document? 6 MS. ZOLEZZI: Yes, it is. 7 MS. LEIDIGH: It is. 8 C.O. CAFFREY: I think the fine point here -- excuse 9 me for stealing your thunder here, Mr. Birmingham. But the 10 point that Mr. Birmingham is making and I seem to recall, 11 and correct me if I'm wrong, was that citing a public 12 document and not having to provide copies, the provision of 13 not having to provide copies rested on whether or not the 14 Board had an official copy in its file. 15 MS. LEIDIGH: Yes. 16 C.O. CAFFREY: And didn't we make rulings on that 17 basis in the past, Ms. Leidigh? 18 MR. BRANDT: Yeah. 19 MS. LEIDIGH: Yes. 20 C.O. CAFFREY: So in my mind the question becomes: 21 Does the recent provision of the copy by Ms. Zolezzi to us 22 constitute it being in our files? I'm not sure it does. 23 To me in the files, picking up to what you were saying a 24 moment ago, constitutes the fact that it's available, it's 25 there in the files, it's been there for a while for people CAPITOL REPORTERS (916) 923-5447 6358 1 to have access to and to review. 2 MS. LEIDIGH: Right. It's not something that's 3 recently added to the files just for the purpose of using 4 it in this hearing is the way I interpret it. But I think 5 you know maybe there is some discretion there, but my 6 recommendation would be that it doesn't seem generally to 7 be fair to the parties to use that kind of a device. 8 MR. BIRMINGHAM: Mr. Caffrey? 9 C.O. CAFFREY: Please. 10 MR. BIRMINGHAM: I didn't mean to take this much 11 time. 12 C.O. CAFFREY: That's all right. 13 MR. BIRMINGHAM: Maybe Ms. Zolezzi could go forward 14 and we will make copies of the document during the lunch 15 hour. In fact, that probably would speed things up. 16 C.O. CAFFREY: Is that agreeable, Ms. Zolezzi? 17 MS. ZOLEZZI: Yeah, that's fine. Apparently, it was 18 my misunderstanding. My understanding of a public document 19 was that if we provided copies of it to the State Board 20 that would take care of it. We're more than happy to 21 provide copies to the parties. I would ask that that apply 22 to all the parties in this proceeding, however. 23 MR. BRANDT: It has, actually. 24 C.O. CAFFREY: No harm, no followers. We're 25 interrupting from time to time as we go here and we think CAPITOL REPORTERS (916) 923-5447 6359 1 hopefully being consistent with what we've done in the 2 past. And it's all right to take the time to do this. And 3 we appreciate everybody's patience. So let's get the 4 copies and we will go ahead and proceed now, Ms. Zolezzi. 5 Thank you. 6 MS. ZOLEZZI: Just to go back, I wanted to make clear 7 that I am not asking Mr. Delamore to have any legal 8 conclusion on this statement. I was simply questioning 9 whether or not the document I was referring to, the 10 findings of fact and conclusions of law contained the 11 statement. And, perhaps, I can provide you with a copy of 12 it. 13 MR. BRANDT: Good idea. 14 MS. ZOLEZZI: At Page 40. 15 MS. WHITNEY: Could you repeat what exhibit it is? 16 MS. ZOLEZZI: It's Stockton East Water District 15. 17 So the question is: Do the findings of fact and 18 conclusions of law contain a conclusion that the Government 19 has acknowledged that it halted the construction of the San 20 Luis drain when questions and concerns were raised in 1975 21 in the public arena? 22 MR. DELAMORE: Yes, that's what's written here on 23 Page 40. 24 MS. ZOLEZZI: When the Bureau halted construction do 25 you know, Mr. Delamore, whether any questions or concerns CAPITOL REPORTERS (916) 923-5447 6360 1 were raised regarding the impact of that decision on other 2 CVP contractors? 3 MR. DELAMORE: No, I don't know. 4 MS. ZOLEZZI: In that litigation the Court also found 5 that the Secretary of the Interior through the Bureau of 6 Reclamation had made the policy decision not to complete 7 the San Luis drain. 8 We have heard earlier, Mr. Ploss testified, and I 9 apologize because you weren't here, that some of the 10 assumptions made for operations of the New Melones Project 11 relied on the fact that -- oh, I take that back. We did 12 not testify to that. He testified that he didn't know. I 13 apologize. 14 When the policy decision was made by the Bureau 15 not to complete the San Luis drain, were you a part of that 16 decision? 17 MR. DELAMORE: No. And I'm not aware that that 18 policy decision was made. 19 MS. ZOLEZZI: Is the conclusion reached by the Court 20 in error? 21 MR. BIRMINGHAM: I'm going to object. I'm going to 22 object, that does call for a legal conclusion. This is a 23 decision which is currently on appeal to the Ninth Circuit. 24 The United States has not appealed from the factual 25 findings contained in the partial judgment resulting from CAPITOL REPORTERS (916) 923-5447 6361 1 this decision. And asking Mr. Delamore to agree or 2 disagree with the findings of the court, which haven't been 3 appealed, at least from my perspective, calls for a legal 4 conclusion. 5 MS. ZOLEZZI: I'm simply asking the witness whether 6 or not he agrees with the factual statement that the court 7 made. Whether it's a legal conclusion or not, factually 8 from his position with the Bureau, does he agree with the 9 statement? He apparently does not. 10 C.O. CAFFREY: Mr. Brandt, do you have anything to 11 say? 12 MR. BRANDT: I think based on that and she's 13 identifying Paragraph 127 on Page 40, if it's a factual 14 question of whether that is factually correct, I think I'm 15 not going -- I don't think I'm going to object on this one. 16 C.O. CAFFREY: All right. Mr. Delamore, if you can 17 answer the question on the basis of your expertise, I will 18 allow you to answer the question. If you don't feel 19 comfortable with it, you don't have to. Go ahead. 20 MR. DELAMORE: Could you, just to be clear, state the 21 question again? 22 MS. ZOLEZZI: Yeah. Basically I think where we are 23 here is that on Page 40 on the findings of fact and 24 conclusions of the law the Court makes the statement that 25 the Secretary of the Interior through the Bureau of CAPITOL REPORTERS (916) 923-5447 6362 1 Reclamation has made the policy decision not to complete 2 the San Luis drain. 3 MR. BRANDT: Where are we? I don't see that. 4 MS. ZOLEZZI: It's probably the next tab. 5 MS. ZOLEZZI: It's Paragraph 19 at Page 47. 6 MR. DELAMORE: And, yes, to answer your question I 7 don't agree that this is entirely accurate. 8 MS. ZOLEZZI: Okay. Could you state the current 9 policy of the Bureau with regard to the drain, or 10 construction of the drain? 11 MR. DELAMORE: I believe the latest official 12 statement on that it was in the 1990 San Joaquin Valley 13 Drainage Program report, also known as the Rainbow Report. 14 And in that document it states that the decision on 15 out-of-valley export could be postponed for several decades 16 through in-valley management actions. 17 MS. ZOLEZZI: Could you elaborate on how it could be 18 postponed? 19 MR. DELAMORE: I will refer you to that document, 20 that report. But basically, what was concluded in that, as 21 I understand it, was that through in-valley drainage 22 management actions the need for out-of-valley salt disposal 23 could be postponed for several decades, the decision how 24 to -- on an out-of-valley export facility could be 25 postponed. CAPITOL REPORTERS (916) 923-5447 6363 1 MS. ZOLEZZI: So was the conclusion that -- and I 2 apologize. Could you repeat, was it in -- what was seen as 3 being able to postpone the decision was it in in-basin -- 4 was it realtime management, or what did you state? I 5 apologize. 6 MR. DELAMORE: I don't have the document in front of 7 me, but my recollection right up front somewhere it states 8 that the decision on out-of-valley export of salts could be 9 through implementation of the management recommendations 10 within that report. The decision on how -- whether and how 11 to deal with the salts could be postponed for several 12 decades. That was a paraphrasing of what it says. 13 MS. ZOLEZZI: No problem. And do you recall in that 14 Rainbow Report if the management recommendations contained 15 therein would result in meeting the water quality standards 16 at Vernalis? 17 MR. DELAMORE: One of the recommendations for the 18 northern -- basically, for the grasslands subarea was 19 continued discharge of drainage water to the San Joaquin 20 River while meeting water quality objectives. 21 MS. ZOLEZZI: Would meeting those water quality 22 objectives include dilution flows? 23 MR. DELAMORE: What do you mean by "dilution flows"? 24 MS. ZOLEZZI: From any source, dilution into the San 25 Joaquin River to cause the drainage discharges to meet the CAPITOL REPORTERS (916) 923-5447 6364 1 water quality objectives at Vernalis? 2 MR. DELAMORE: The river at various times has an 3 assimilative capacity to absorb salts within and meet water 4 quality objectives. The plan for the river discharge 5 component in that report, frankly, was not very specific. 6 MS. ZOLEZZI: Okay. Turning back to the litigation 7 you were referring to earlier, in that litigation Judge 8 Wanger ordered the Bureau to apply to the State Water 9 Resources Control Board for a discharge permit. Did the 10 Bureau make such an application? 11 MR. DELAMORE: It -- I'm not sure that that's an 12 entirely accurate characterization of the order. Again, 13 without seeing it, I think it had something like take 14 necessary actions to promptly prepare, file and pursue an 15 application. 16 MS. ZOLEZZI: That's correct. Has the Bureau 17 undertaken that action? 18 MR. DELAMORE: The Bureau solicited guidance from 19 this Board on what would be necessary to prepare, file and 20 pursue an application. 21 MS. ZOLEZZI: And when was that guidance sought? 22 MR. DELAMORE: In the 1995/'96 time frame. 23 MS. ZOLEZZI: In April of 1996 did the State Water 24 Resources Control Board adopt a resolution stating that the 25 CEQA/NEPA process would be used to provide the framework CAPITOL REPORTERS (916) 923-5447 6365 1 for project planning and permitting? 2 MR. DELAMORE: The Board adopted a resolution, yes, 3 that generally stated that, I think. 4 MS. ZOLEZZI: Did the State Board also direct its 5 staff to negotiate with the Bureau a Memorandum of 6 Understanding for the reimbursement of costs and other 7 expenses associated with preparing the environmental 8 documents? 9 MR. DELAMORE: Yes. 10 MS. ZOLEZZI: Has that MOU been executed? 11 MR. DELAMORE: No. 12 MS. ZOLEZZI: Do you know why there has been a 13 two-and-a-half-year delay in that process? 14 MR. DELAMORE: I can't say that I do, no. 15 MS. ZOLEZZI: Is it true that the Bureau engaged in 16 settlement discussions in 1997 with the parties in that 17 litigation in an effort to settle it? 18 MR. BRANDT: Objection. Vague as to which 19 litigation? 20 C.O. CAFFREY: Could you clarify, Ms. Zolezzi? 21 MS. ZOLEZZI: Uh-huh. 22 C.O. CAFFREY: Thank you. 23 MS. ZOLEZZI: Is it true the Bureau engaged in 24 settlement discussions in 1997 with the parties to the 25 litigation filed in 1992 by Sumner Peck Ranch, et al., CAPITOL REPORTERS (916) 923-5447 6366 1 against the Bureau of Reclamation and the Westlands Water 2 District? 3 MR. MINASIAN: I object to the question. Settlement, 4 or the existence of settlement is not divulgeable, or 5 discoverable by a Board in a proceeding, either 6 administrative or legal. 7 C.O. CAFFREY: Ms. Leidigh, do you want to enlighten 8 the Board here? 9 MS. LEIDIGH: Yes, just a moment. There is a section 10 on that. The question is: Are you talking settlement in 11 this proceeding, or settlement in a different proceeding? 12 MS. ZOLEZZI: Settlement in that litigation and that 13 document is a public document. 14 MR. MINASIAN: While Barbara is looking it up, can I 15 make a further foundation fact? The Exchange Contractors 16 are parties to that litigation and are affected by the 17 judgment. So we believe we have standing in making an 18 objection. 19 C.O. CAFFREY: Thank you, Mr. Minasian. 20 Mr. Nomellini, you rise, sir. 21 MR. NOMELLINI: Yeah, I think the issue is not 22 settlement of this particular proceeding, it's a settlement 23 somewhere else. I don't know of any preclusion of that 24 evidence for this record. If it was a settlement of this 25 particular case, we wouldn't want you to know about it, CAPITOL REPORTERS (916) 923-5447 6367 1 because that would keep us from working. 2 But this Board has had proceedings for settlement 3 discussions before that we had some disagreement on. But 4 that objection, I don't think it's a valid one because it's 5 not a settlement in this case. 6 C.O. CAFFREY: I guess I would just ask rhetorically: 7 How do we know that it wouldn't affect this case if we had 8 that knowledge? I don't know. That's why I'm looking to 9 Ms. Leidigh. I'm sorry, Mr. Nomellini. 10 MR. NOMELLINI: I don't think it makes any difference 11 unless it's particularly relevant to this particular case. 12 MR. BRANDT: This case has been -- or at least other 13 parties have made arguments about the San Luis drain. And 14 so it is going to be relevant to this case, because it may 15 determine how -- what the outcome of the decision of 16 implementation is. 17 MR. BIRMINGHAM: Also, Mr. Caffrey -- 18 C.O. CAFFREY: Mr. Birmingham. 19 MR. BIRMINGHAM: I would observe that it's relevant 20 to other proceedings that are ongoing, or will be ongoing 21 before this Board. Mr. Delamore has testified concerning 22 the MOU, which presumably will bring the drain back before 23 this Board. And these settlement discussions, certainly, 24 would affect that proceeding. 25 MS. ZOLEZZI: It, certainly, is relevant to these CAPITOL REPORTERS (916) 923-5447 6368 1 proceedings, or we would not be asking the questions about 2 it. The fact is this is a settlement document that was 3 entered into among the parties to the litigation that was 4 subsequently rejected by the Court. And we wish to use it 5 just to show its relevance as to the position of the Bureau 6 of Reclamation since it signed the settlement document. 7 C.O. CAFFREY: All right. Thank you, Ms. Zolezzi. 8 Anybody else? Ms. Leidigh. 9 MS. LEIDIGH: I wanted to ask whether the settlement 10 document was submitted to the court? 11 MS. ZOLEZZI: Yes, it was. 12 MS. LEIDIGH: And so it is a public document? 13 MS. ZOLEZZI: Yes, it is. 14 MS. LEIDIGH: If it's a public document I think it is 15 admissible in this proceeding. 16 MS. ZOLEZZI: That's my understanding. 17 C.O. CAFFREY: All right. I'm going to overrule the 18 objection, allow the question to be answered. 19 Mr. Brandt, did I speak too soon, you had 20 something to add? 21 MR. BRANDT: So it's just based on the document 22 basically of whether there was -- because you asked about 23 settlement discussions, I want to make sure that we're 24 talking about whether there was a settlement document, if 25 that's the question here? CAPITOL REPORTERS (916) 923-5447 6369 1 MS. ZOLEZZI: Yeah. I have no interest in the 2 context of the settlement discussion. I was just asking 3 whether there were discussions to lay the foundation that 4 the agreement was entered into. 5 MR. BIRMINGHAM: I wonder if Ms. Zolezzi is going to 6 identify and introduce the settle agreement? 7 MS. ZOLEZZI: I am not. 8 MR. BIRMINGHAM: Without the settlement agreement, I 9 don't know what questions can be asked of this witness 10 concerning the document. 11 MS. ZOLEZZI: I believe he was involved in the 12 negotiations. I believe he was familiar with the document 13 when the Bureau of Reclamation signed it. And he can 14 testify to it from his own knowledge. If he can't, he will 15 so answer. 16 C.O. CAFFREY: Let's just see where the questioning 17 goes here. All right. Go ahead, Ms. Zolezzi. 18 MS. ZOLEZZI: Thank you. Is it true, Mr. Delamore, 19 that the Bureau engaged in settlement discussions in 1997 20 with the parties to the litigation filed in 1992 by Summer 21 Peck Ranch, et al., against the Bureau of Reclamation and 22 Westlands Water District? 23 MR. DELAMORE: Yes, I believe the time period 24 included 1997. 25 MS. ZOLEZZI: Was the settlement agreement entered CAPITOL REPORTERS (916) 923-5447 6370 1 into among those parties? 2 MR. DELAMORE: Amongst some of the parties. 3 MS. ZOLEZZI: Some of the parties. Did the 4 settlement require the construction of a drain, or other 5 drainage solution? 6 MR. DELAMORE: It didn't require. It had a clause, 7 and I don't remember precisely the wording, but there was 8 language in there to "continue to pursue drainage solutions 9 in partnership." 10 MS. ZOLEZZI: Did the settlement document provide for 11 other interim drainage solutions? 12 MR. DELAMORE: I -- what do you mean? 13 MS. ZOLEZZI: Did it provide for any method of 14 addressing the drainage problem other than building the 15 drain? 16 MR. DELAMORE: Again, it had some language to 17 cooperate to pursue actions, or efforts to define and 18 implement solutions. I -- beyond that I can't remember any 19 more specifics. 20 MS. ZOLEZZI: Was that settlement agreement submitted 21 to the court? 22 MR. DELAMORE: I don't, frankly, know the processing. 23 I know it came to the District Court's attention in Fresno. 24 MS. ZOLEZZI: Did Judge Wanger approve the settlement 25 agreement? CAPITOL REPORTERS (916) 923-5447 6371 1 MR. DELAMORE: No, he did not. 2 MS. ZOLEZZI: Do you know why he did not? Now, I 3 don't mean to ask you his inner workings, but was there a 4 decision wherein he stated why he did not? 5 MR. DELAMORE: I don't know. 6 MS. ZOLEZZI: When the Bureau executed the settlement 7 agreement which did not call for the immediate pursuant of 8 construction of a drain, did the Bureau consider -- 9 MR. MINASIAN: Objection. 10 MR. BIRMINGHAM: Objection. Miss -- lacks 11 foundation. Misstates the evidence. 12 MR. MINASIAN: Join. 13 MS. ZOLEZZI: I will restate the question. It's 14 my -- 15 C.O. CAFFREY: I think we're getting into the merits, 16 so to speak, of the settlement if I understood the 17 question. And so why don't you try something else? 18 MS. ZOLEZZI: Mr. Delamore, it's my understanding 19 that you just testified that the settlement agreement did 20 not call for the immediate construction of the drain? 21 MR. DELAMORE: It neither called for it nor excluded 22 it. 23 MS. ZOLEZZI: Did you indicate that it called for 24 pursuit of a long-term process? 25 MR. DELAMORE: Again, without -- I haven't looked at CAPITOL REPORTERS (916) 923-5447 6372 1 the language of that settlement for quite some time. But 2 my recollection is that it included some language to the 3 affect that we, in partnership with Westlands, who is party 4 to the settlement, would continue to pursue and 5 implement -- continue to -- our efforts to identify and 6 implement drainage solutions. 7 MS. ZOLEZZI: When the decision was made by the 8 Bureau to execute the settlement agreement, was any 9 consideration given to the affect of such a proposed 10 settlement agreement on third parties not part of the 11 lawsuit, but directly impacted by the lack of a drain? 12 MR. BRANDT: I just caution the witness not to 13 divulge any attorney-client material here. 14 MR. DELAMORE: I will not do that, because I don't 15 know how to answer. I don't know. 16 MS. ZOLEZZI: And you may have indirectly answered 17 this, and forgive me if you have, but could you state what 18 the Bureau's current policy is with regard to the 19 construction of a drain? 20 MR. BIRMINGHAM: Objection. Asked and answered. 21 MS. ZOLEZZI: I don't remember the answer. I 22 apologize, but -- 23 MR. BIRMINGHAM: I believe the answer was that the 24 current policy is stated in the San Joaquin Valley Drainage 25 Report, which Mr. Delamore referred to as the Rainbow CAPITOL REPORTERS (916) 923-5447 6373 1 Report. 2 MS. ZOLEZZI: Perhaps, Mr. Birmingham could be sworn. 3 If we could go back -- 4 MR. BIRMINGHAM: The record will speak for itself, 5 Mr. Caffrey. I believe the -- 6 MS. ZOLEZZI: Exactly. 7 C.O. CAFFREY: The -- 8 MR. BIRMINGHAM: Excuse me. 9 C.O. CAFFREY: Go ahead. 10 MR. BIRMINGHAM: I believe the question was asked in 11 virtually identical words and Mr. Delamore answered that 12 question. 13 C.O. CAFFREY: It's been asked and answered. Go to 14 another question. 15 MS. ZOLEZZI: Did the Rainbow Report, which 16 apparently includes the Bureau's current policy on the 17 provision of drainage, include the fact that the Bureau 18 would apply to the State Board for a waste-discharge permit 19 for the drain? 20 MR. DELAMORE: No. 21 MS. ZOLEZZI: Yet, the Board -- the Bureau of 22 Reclamation has begun that process? 23 MR. DELAMORE: I'm sorry, begun the process to apply 24 for -- 25 MS. ZOLEZZI: Yes. CAPITOL REPORTERS (916) 923-5447 6374 1 MR. DELAMORE: -- by soliciting guidance from the 2 State Board, yes. 3 MS. ZOLEZZI: So I'm rather confused then. If your 4 testimony is that the Bureau's current policy as to 5 construction of a drain is contained in the Rainbow Report, 6 yet, the Bureau is taking actions that are not included in 7 that report as I'm assuming part of its policy. 8 MR. DELAMORE: And? 9 MS. ZOLEZZI: So apparently in my mind the Rainbow 10 Report does not include all of the Bureau's current 11 policies. Perhaps, you can clarify that? 12 MR. DELAMORE: I think it's -- 13 MR. BRANDT: Objection. Compound and argumentative. 14 MS. ZOLEZZI: I can do that. 15 MR. BRANDT: Yeah. 16 MR. DELAMORE: I'm guess I can -- 17 C.O. CAFFREY: I'm going to allow him to answer. I 18 mean do you understand the question, Mr. Delamore? 19 MR. BRANDT: Well, there's three questions. 20 MS. ZOLEZZI: I can break them down. 21 C.O. CAFFREY: Yeah, let's do that. 22 MS. ZOLEZZI: Apparently, you have testified here 23 today, as Mr. Birmingham confirmed, that the Bureau's 24 current policy with regard to the construction of a San 25 Luis drain is contained in what we've referred to as the CAPITOL REPORTERS (916) 923-5447 6375 1 Rainbow Report. 2 MR. DELAMORE: Yes. 3 MS. ZOLEZZI: You have also testified that the 4 Rainbow Report does not include the provision that the 5 Bureau of Reclamation will begin the process of applying to 6 the State Board for a waste-discharge permit for a drain? 7 MR. DELAMORE: Yes. 8 MS. ZOLEZZI: That leads me to believe that there are 9 other policy considerations that were outside of the 10 Rainbow Report. 11 MR. DELAMORE: Yes. And I -- I think that the 12 Bureau's policy is to comply with court orders. 13 MS. ZOLEZZI: And your understanding of that court 14 order would be? 15 MR. DELAMORE: To take all reasonable and necessary 16 actions to promptly prepare, file and pursue an application 17 for a discharge permit for the San Luis drain. 18 MS. ZOLEZZI: And it's your belief that a 19 two-and-a-half-year process without filing that application 20 is prompt? 21 MR. DELAMORE: I'm sorry the question is? 22 MS. ZOLEZZI: Do you believe that a 23 two-and-a-half-year time lag between the direction from the 24 court and the Bureau not still having applied for that 25 permit is prompt? CAPITOL REPORTERS (916) 923-5447 6376 1 MR. DELAMORE: We promptly solicited guidance from 2 the State Board. The State Board's guidance suggested that 3 the first step was to enter into a Memorandum of 4 Understanding between the State Board, Westlands and the 5 Bureau of Reclamation. A Memorandum of Understanding 6 requires just that, an understanding among all three 7 parties. And I think we're close to that, but that has -- 8 that memorandum has not been executed yet. 9 MS. ZOLEZZI: Okay. Could you tell me what the 10 Bureau's current policy with regard to the provision of 11 dilution flows from the Central Valley Project to meet 12 Vernalis salinity standards is? 13 MR. DELAMORE: I don't know. I think -- I mean I'm 14 somewhat aware of New Melones, but I don't know -- that 15 question might better be directed to Mr. Ploss. 16 MS. ZOLEZZI: Okay. So as far as you know from the 17 drainage area of your specialty there is no policy at the 18 CVP? 19 MR. DELAMORE: No, I'm not aware of any upstream. 20 Other than New Melones, I'm not aware of any Bureau 21 providing dilution for drainage flows. 22 MS. ZOLEZZI: Okay. Thank you. Those are all the 23 questions I have. 24 C.O. CAFFREY: Thank you, Ms. Zolezzi. 25 MR. BIRMINGHAM: Mr. Caffrey? CAPITOL REPORTERS (916) 923-5447 6377 1 C.O. CAFFREY: Mr. Birmingham. 2 MR. BIRMINGHAM: Mr. Caffrey, I just handed 3 Ms. Whitney 20 copies of Stockton Water District's Exhibit 4 15, which are the findings of fact and conclusions of law 5 filed December 16th, 1994, in Sumner Peck Ranch, et al., 6 versus Bureau of Reclamation, Firebaugh Canal Company, et 7 al., versus United States. I have additional copies if 8 anyone wishes them. 9 C.O. CAFFREY: All right. Thank you, Mr. Birmingham. 10 Ms. Whitney, refresh my memory: Are we going to treat this 11 as a direct exhibit, or Ms. Zolezzi? I've lost track 12 mentally. 13 MS. LEIDIGH: Yes. This should be treated as a 14 direct exhibit. 15 C.O. CAFFREY: All right. 16 MS. LEIDIGH: For Stockton East Water District. 17 C.O. CAFFREY: All right. Thank you for providing 18 the copies, Mr. Birmingham. 19 MR. BRANDT: Can I get a copy? 20 C.O. CAFFREY: Thank you, Ms. Zolezzi. By a showing 21 of hands which of the parties wish to cross-examine. 22 Mr. Delamore? Please, all at once. Mr. Birmingham, 23 Mr. Nomellini, Mr. Gallery, Ms. Cahill, Mr. Minasian. Did 24 I leave anybody out? 25 Mr. Brandt, you were not going to cross-examine? CAPITOL REPORTERS (916) 923-5447 6378 1 MR. BRANDT: I'm not going to cross-examine. 2 C.O. CAFFREY: All right, sir. We will take them in 3 this order: Mr. Birmingham, Mr. Nomellini, Mr. Gallery, 4 Mr. Cahill and Mr. Minasian -- I mean Ms. Cahill, excuse 5 me. 6 MR. BIRMINGHAM: Mr. Caffrey, I wonder if we could 7 break now for our lunch and come back at 11:45. I would 8 like to obtain a copy of the settlement agreement -- 9 C.O. CAFFREY: You mean 12:45? 10 MR. BIRMINGHAM: Excuse me, 12:45. I'd like to 11 obtain a copy of the settlement agreement to which 12 Ms. Zolezzi referred in her direct examination so that the 13 record can be clear as to what the settlement agreement 14 provides and what it does not provide. 15 C.O. CAFFREY: Hang on just a minute, Mr. Birmingham. 16 Yes, we will do that with one exception, instead of coming 17 back at a quarter to 1:00 we'll come back at 1:00 o'clock 18 that's an hour and 15 minutes. 19 MR. BIRMINGHAM: Thank you. 20 C.O. CAFFREY: Thank you. 21 (Luncheon recess.) 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 6379 1 MONDAY, NOVEMBER 9, 1998, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: All right. We are back on the record 5 and we were going to begin cross-examination with 6 Mr. Birmingham, who by the way has provided us with copies 7 of the settlement agreement. Thank you, Mr. Birmingham. 8 MR. BIRMINGHAM: You're welcome. In fact, maybe that 9 will be the first thing that I do. I've provided to the 10 State Board staff a document, Mr. Delamore, which I'm 11 handing to you. It's been marked for identification as 12 Westlands' Exhibit 95. And I have additional copies of 13 Exhibit 95 for anyone who would be interested in a copy. I 14 provided 20 copies to the State Board staff. 15 ---oOo--- 16 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 17 BY WESTLANDS WATER DISTRICT 18 BY THOMAS BIRMINGHAM 19 MR. BIRMINGHAM: Mr. Delamore, is Westlands Water 20 District's Exhibit 95 a copy of the settlement agreement 21 between the United States Department of the Interior and 22 Westlands Water District which was the subject of some 23 questions asked of you by Ms. Zolezzi? 24 MR. DELAMORE: Yes. 25 MR. BIRMINGHAM: Ms. Zolezzi also asked you a number CAPITOL REPORTERS (916) 923-5447 6380 1 of questions concerning the findings of fact and 2 conclusions of law that were entered in United States 3 District Court for the Eastern District of California on 4 December 16, 1994, and have been marked for identification 5 in this proceeding as Stockton East Water District's 6 Exhibit 15. 7 Do you recall those questions? 8 MR. DELAMORE: Yes. 9 MR. BIRMINGHAM: Now, the document that's been marked 10 for identification as Stockton East Water District's 11 Exhibit 15 is not the injunction; is that correct? 12 MR. DELAMORE: That's my understanding. This came 13 out I think in December of '95. And then there was, I 14 guess what would be the injunction, or the order came out I 15 think in March -- no, December of '94 and then March of 16 '95. 17 MR. BIRMINGHAM: So the findings of fact and 18 conclusions of law states on Page 48 that a subsequent 19 order was to be prepared in accordance with the memorandum, 20 which has been identified as Stockton East Water District's 21 Exhibit 15; is that correct? And specifically I'm 22 referring to paragraph 26. 23 MR. DELAMORE: Yes. 24 MR. BIRMINGHAM: And I believe you indicated that the 25 injunction that was entered required the Bureau to take the CAPITOL REPORTERS (916) 923-5447 6381 1 steps necessary to conduct the studies and file an 2 application for and seek the permits necessary to construct 3 the San Luis drain; is that correct? 4 MR. DELAMORE: In many -- not in exactly those words 5 as I recall, but, yes, that's essentially correct of my 6 understanding. 7 MR. BIRMINGHAM: The District Court did not order the 8 Bureau of Reclamation to construct the San Luis drain, did 9 it? 10 MR. DELAMORE: That's not my understanding. 11 MR. BIRMINGHAM: In fact, the Court was very specific 12 that it was not going to compel construction of the drain 13 but instead would only compel the Bureau to seek the 14 permits necessary to construct the drain? 15 MR. DELAMORE: I'm uncomfortable getting into 16 interpreting what the Court said. But as I recall the 17 language was "prepare, file and pursue an application 18 permit." 19 MR. BIRMINGHAM: Now, before an application permit 20 can be filed, it will be necessary to conduct studies to 21 determine the scope of the application and the point of 22 discharge; is that correct? 23 MR. DELAMORE: Yes. 24 MR. BIRMINGHAM: In the studies it will also be 25 necessary to analyze alternatives to the construction of CAPITOL REPORTERS (916) 923-5447 6382 1 the drain? 2 MR. DELAMORE: That would be required under Federal 3 and environmental laws, yes. 4 MR. BIRMINGHAM: Now, Ms. Zolezzi also asked you some 5 questions about the negotiation of a Memorandum of 6 Understanding after adoption of a resolution by the State 7 Water Resources Control Board. Do you recall those 8 questions? 9 MR. DELAMORE: Yes. 10 MR. BIRMINGHAM: And I believe you testified that as 11 a result of the adoption of that resolution by the State 12 Water Resources Control Board the Bureau negotiated with 13 the staff of the Water Board concerning payment for the 14 studies necessary to apply for a permit to construct the 15 San Luis drain? 16 MR. DELAMORE: That's correct, with the State Water 17 Board staff as well as Westlands' staff. 18 MR. BIRMINGHAM: And during the course of the 19 negotiations, is it correct that settlement discussions 20 were initiated among the parties to the Sumner Peck 21 litigation? 22 MR. DELAMORE: I'm sorry, in the course of developing 23 the MOU directed by the State Board? 24 MR. BIRMINGHAM: Well, let me ask the question 25 differently. After the State Board adopted the resolution CAPITOL REPORTERS (916) 923-5447 6383 1 concerning the Memorandum of Understanding that would 2 establish who would pay the costs of preparing the studies, 3 the Bureau started negotiating that MOU? 4 MR. DELAMORE: That's correct. 5 MR. BIRMINGHAM: And you negotiated that MOU with the 6 staff of the State Board and representatives of Westlands 7 Water District? 8 MR. DELAMORE: That's correct. 9 MR. BIRMINGHAM: And there was a number of versions 10 of that document; is that correct? 11 MR. DELAMORE: Yes. 12 MR. BIRMINGHAM: And as the discussions concerning 13 the MOU were progressing in another forum, did settlement 14 discussions among the parties in the Sumner Peck litigation 15 begin? 16 MR. DELAMORE: I don't remember the exact timing of 17 initiation of settlement discussions. The settlement 18 discussions, as I understood the process, were basically 19 directed by and sponsored by the Ninth Circuit Appeals 20 Court. And I don't recall the timing vis-a-vis the State 21 Board proceedings and the settlement proceedings, but 22 basically they were concurrent as I recall. 23 MR. BIRMINGHAM: Now, the settlement discussions that 24 you just referred to resulted in the settlement agreement 25 that's been marked for identification as Westland's Exhibit CAPITOL REPORTERS (916) 923-5447 6384 1 95; is that correct? 2 MR. DELAMORE: That's correct. 3 MR. BIRMINGHAM: I'd like to refer you if I may, 4 Mr. Delamore, to Page 8 of Westlands' Exhibit 95. 5 MR. DELAMORE: Yes. 6 MR. BIRMINGHAM: On Page 8 of Westlands' Exhibit 95 7 there is a heading adjacent to the number three called 8 "Drainage Studies and Implementation of Solution." Is that 9 correct? 10 MR. DELAMORE: Correct. 11 MR. BIRMINGHAM: And is it correct that this portion 12 of the settlement agreement marked for identification as 13 Westlands' Exhibit 95 provides that the Bureau in 14 conjunction with Westlands and other parties will conduct 15 studies of potential solutions to the drainage problem in 16 the west side of the San Joaquin Valley? 17 MR. DELAMORE: That's correct. 18 MR. BIRMINGHAM: And is it correct that under the 19 settlement agreement that's been marked for identification 20 as Westlands Exhibit 95 the Bureau committed to study 21 out-of-valley solutions to the drainage problem? 22 MR. BRANDT: Objection. Vague. Are we referring to 23 a specific page, or -- if you could direct the witness as 24 to where you're talking about. 25 C.O. CAFFREY: Can you do that, Mr. Birmingham? CAPITOL REPORTERS (916) 923-5447 6385 1 MR. BIRMINGHAM: Yes, I certainly can. 2 C.O. CAFFREY: Thank you, sir. 3 MR. BIRMINGHAM: On Page 8, Paragraph 3-A it states, 4 does it not, Mr. Delamore, 5 (Reading): 6 "That upon vacation of the partial judgment and 7 the District Court's order Plaintiffs' motion 8 for summary judgment filed May 17, 1993, 9 Westlands and the United States with the 10 participation of the public and in consultation 11 with the State of California shall cooperate in 12 a study, or studies of potential in-valley and 13 out-of-valley solutions to the drainage problem 14 in the San Luis unit of the Central Valley 15 Project." 16 MR. DELAMORE: Yes. 17 MR. BIRMINGHAM: Now, I'd like to go back, if we can 18 for a moment and talk about the Rainbow Report to which you 19 referred in some questions -- or in answer to some 20 questions asked by Ms. Zolezzi. 21 The Rainbow Report, which is entitled, the formal 22 name is "A Management Plan for Agricultural Subsurface 23 Drainage and Related Problems on the West Side of the San 24 Joaquin Valley," September 1990, has been admitted into 25 evidence, Mr. Delamore, as State Water Resources Control CAPITOL REPORTERS (916) 923-5447 6386 1 Board Staff Exhibit 147. 2 And I'm handing to you a copy of what is commonly 3 known as the drainage -- excuse me, the Rainbow Report. 4 And I would ask you: Are you familiar with the document 5 that's been admitted into evidence as State Water Resources 6 Control Board Staff Exhibit 147? 7 MR. DELAMORE: Yes. 8 MR. BIRMINGHAM: Now. In preparation of the Rainbow 9 Report, State Water Resources Control Board Staff Exhibit 10 147, did the Bureau of Reclamation study out-of-valley 11 solutions to the drainage problem? 12 MR. DELAMORE: My understanding, I wasn't directly 13 involved with this program at the time, but my 14 understanding is after 1987 they stopped looking at the 15 out-of-valley option. 16 MR. BIRMINGHAM: Isn't it correct that the Bureau of 17 Reclamation in conjunction with the other parties that were 18 participating in the preparation of the report determined 19 that they would not study an out-of-valley solution, 20 because there was a feeling that an out-of-valley solution 21 was politically infeasible? 22 MR. DELAMORE: I can't say what all went into that 23 decision. I know that there was an advisory group to be -- 24 there was a management group directing this program and 25 there was an advisory group. And it was the recommendation CAPITOL REPORTERS (916) 923-5447 6387 1 of the advisory group in 1987 that the program for its 2 duration through 1990 focus on in-valley solutions. 3 MR. BIRMINGHAM: I'd like, if I may, Mr. Delamore, to 4 ask you some questions about the settlement agreement, 5 Westlands Exhibit 95 and the court order, Stockton East 6 Water District's Exhibit 15. 7 You were involved, weren't you, Mr. Delamore, in 8 the defense of the United States in connection with the 9 litigation that resulted in Stockton East Water District's 10 Exhibit 15? 11 MR. DELAMORE: Yes. 12 MR. BIRMINGHAM: And you were involved in the 13 negotiations that resulted in the settlement agreement 14 that's been marked for identification as Westlands' Exhibit 15 95? 16 MR. DELAMORE: Yes. 17 MR. BIRMINGHAM: And you're familiar with the 18 obligation of the Bureau of Reclamation to comply with the 19 injunction that resulted from the Sumner Peck litigation? 20 MR. DELAMORE: Yes. 21 MR. BIRMINGHAM: And you're familiar with the 22 obligations undertaken by the Bureau of Reclamation as part 23 of its settlement agreement in Westlands Water District 24 Exhibit 95? 25 MR. DELAMORE: I'm familiar with the contents of the CAPITOL REPORTERS (916) 923-5447 6388 1 settlement agreement, is that what you're asking? 2 MR. BIRMINGHAM: Yes. 3 MR. DELAMORE: Yes. 4 MR. BIRMINGHAM: And what would be required of the 5 United States to comply with its obligations under Exhibit 6 95? 7 MR. BRANDT: Objection. Vague. Assuming that the 8 things that happened in the settlement agreement happened. 9 MR. BIRMINGHAM: That's correct. Mr. Brandt is 10 absolutely correct that there was a condition precedent to 11 certain obligations in Westlands Water District 95; isn't 12 that correct, Mr. Delamore? 13 MR. DELAMORE: Correct. 14 MR. BIRMINGHAM: And with respect to the Government's 15 obligations concerning drainage solutions, the condition 16 precedent was vacation of the partial judgment? 17 MR. DELAMORE: That's correct. Well, to I think all 18 the terms of the settlement. 19 MR. BIRMINGHAM: Okay. Now, the question I have of 20 you, Mr. Delamore, is this: In conducting the studies for 21 the out-of-valley solution to the drainage problem in the 22 San Luis unit, what, if anything, would the government have 23 to do differently than it would do to comply with the 24 injunction that was issued by the District Court in the 25 Sumner Peck litigation? CAPITOL REPORTERS (916) 923-5447 6389 1 MR. DELAMORE: I'm not aware of any significant 2 differences. 3 MR. BIRMINGHAM: It's correct, isn't it, that both 4 the injunction and the settlement agreement impose an 5 obligation on the Bureau to study out-of-valley solutions? 6 MR. DELAMORE: I don't know if I'd term it that way, 7 but it included an agreement by the Bureau to pursue what's 8 outlined in the settlement agreement, which includes 9 looking at the problem and potential solutions, all 10 potential solutions. 11 MR. BIRMINGHAM: And to comply with the 12 Government's -- well, let me state it differently. To 13 comply with the injunction that was issued by the District 14 Court, it would be necessary for the Bureau to study 15 in-valley solutions under the National Environmental Policy 16 Act? 17 MR. DELAMORE: Correct. 18 MR. BIRMINGHAM: So that obligation is the same under 19 both the injunction and the settlement agreement? 20 MR. DELAMORE: Correct. 21 MR. BIRMINGHAM: And the District Court ordered the 22 United States to study the construction of the San Luis 23 drain, an out-of-valley solution? 24 MR. DELAMORE: Correct, with the specific order to 25 prepare, file and pursue an application permit. So there's CAPITOL REPORTERS (916) 923-5447 6390 1 that slight distinction between what's in the settlement 2 agreement and the court order. 3 MR. BIRMINGHAM: Well, isn't it correct, 4 Mr. Delamore, that if as a result of the studies undertaken 5 as part of the settlement agreement it was determined that 6 the construction of an out-of-valley drain was feasible 7 that the United States would be obligated to seek the 8 permits necessary for the construction of that drain? 9 MR. DELAMORE: If the results of those studies 10 suggested that the preferred alternative was to have a 11 discharge, then we'd have to get a discharge permit, 12 correct. 13 MR. BIRMINGHAM: Well, let's look at Paragraph 3-C on 14 Pages 8 and 9 of Westlands Water District's Exhibit 95 for 15 identification. Under Paragraph 3-C it states, 16 (Reading): 17 "If the study or studies, or any subsequent 18 study identifies a feasible solution to the 19 drainage problems in the San Luis unit of the 20 Central Valley Project, the United States shall 21 to the extent authorized by law and upon the 22 issuance of permits, or similar approvals 23 implement one or more of the solutions. And the 24 Bureau of Reclamation shall, if necessary, seek 25 through appropriate administrative process CAPITOL REPORTERS (916) 923-5447 6391 1 supplemental authorization or appropriations." 2 Did I read that correctly, Mr. Delamore? 3 MR. DELAMORE: That's the way I read it, too, yes. 4 MR. BIRMINGHAM: And is it your understanding of 5 Paragraph 3-C that if the construction of an out-of-valley 6 solution, or a drain was determined feasible as a result of 7 the studies referred to in Paragraph 3-A, the United States 8 would be obligated to seek the permits, or similar 9 approvals required for the implementation of that solution? 10 MR. DELAMORE: Correct. 11 MR. BIRMINGHAM: So isn't it correct, Mr. Delamore, 12 that the obligation to pursue an out-of-valley solution 13 that is contained in the settlement agreement, Westlands' 14 95, isn't significantly different than the obligations 15 imposed on the Bureau of Reclamation by the District Court 16 in its injunction? 17 MR. BRANDT: Objection to the extent it calls for a 18 legal conclusion. But if you have an understanding -- on 19 that basis I'm going to limit my objection. 20 MR. DELAMORE: I appreciate the objection. To the 21 extent it requires a legal conclusion, then I'm not -- 22 C.O. CAFFREY: You didn't give me a chance to rule on 23 the objection, Mr. Delamore. 24 MR. DELAMORE: Excuse me. 25 C.O. CAFFREY: But you presumed correctly, I was CAPITOL REPORTERS (916) 923-5447 6392 1 about to say that Mr. Brandt's objection is noted in the 2 record, but I was going to allow the witness to answer if 3 he feels that he has an opinion, or a level of experience 4 that would -- by which you would offer an opinion. Go 5 ahead, sir. 6 MR. DELAMORE: Well, I'll just reiterate. I don't 7 want to interpret what the legal obligation is here. 8 MR. BIRMINGHAM: But in your prior answers to my 9 questions, Mr. Delamore, you stated your understanding of 10 what the government was obligated to do under the 11 settlement agreement. 12 MR. DELAMORE: That's correct. 13 MR. BIRMINGHAM: And with respect to my questions 14 concerning the injunction issued by the District Court, you 15 stated your understanding of what the government is 16 obligated to do to comply with that injunction? 17 MR. DELAMORE: Correct. 18 MR. BIRMINGHAM: Now, the Memorandum of Understanding 19 that was negotiated among the staff of the Water Board, the 20 Bureau of Reclamation and the Westlands Water District, is 21 it correct that that Memorandum of Understanding is, 22 essentially, in its final form? 23 MR. DELAMORE: That's my understanding, is the -- 24 most of the issues are resolved. 25 MR. BIRMINGHAM: And is it correct that under the CAPITOL REPORTERS (916) 923-5447 6393 1 Memorandum of Understanding Westlands Water District will 2 pay all of the direct and indirect costs for conducting the 3 studies required to seek the permits ordered by the 4 District Court? 5 MR. DELAMORE: Correct. 6 MR. BIRMINGHAM: And under the settlement agreement 7 the Westlands Water District would have paid all of the 8 costs associated with preparing the studies to implement 9 the settlement agreement; is that correct? 10 MR. DELAMORE: You'll have to point me to where 11 that's specified in here. I don't recall. I think -- I 12 think that's correct, I'm just not sure. 13 MR. BIRMINGHAM: Well, let me ask the question this 14 way, Mr. Delamore, because it would take me a moment to 15 find that provision. 16 From the tenure of Ms. Zolezzi's questions I was 17 left with the impression that it was her view that the 18 United States has been dilatory in complying with its 19 obligations under the judgment. 20 MR. DELAMORE: That's your understanding -- 21 MR. BIRMINGHAM: That was my understanding. 22 MR. DELAMORE: -- was the question. 23 MR. BIRMINGHAM: In your view has the United States 24 been dilatory in its efforts to comply with the 25 requirements of the injunction? CAPITOL REPORTERS (916) 923-5447 6394 1 MR. DELAMORE: No. 2 MR. BIRMINGHAM: And isn't it correct, Mr. Delamore, 3 that the attempts to settle the litigation resulted in 4 Westlands Water District 95 -- 5 MR. DELAMORE: That's correct. 6 MR. BIRMINGHAM: Well, I haven't asked the question, 7 yet. Excuse me. 8 That Westlands and the United States through the 9 negotiations of Westlands' Exhibit 95 were attempting to 10 accomplish the same things that Westlands and the Bureau 11 have been attempting to accomplish through the negotiation 12 of the MOU; is that correct? 13 MR. DELAMORE: Yes. 14 MR. BIRMINGHAM: Is it your understanding, 15 Mr. Delamore, that there is an appeal pending in the United 16 States District Court for the Ninth Circuit -- excuse me, 17 let me restate the question. 18 Is it your understanding that there is an appeal 19 pending in the United States Court of Appeals for the Ninth 20 Circuit -- 21 MR. DELAMORE: Yes. 22 MR. BIRMINGHAM: -- resulting from Judge Wanger's 23 opinion? 24 MR. DELAMORE: Yes. 25 MR. BIRMINGHAM: And has the pendency of that appeal CAPITOL REPORTERS (916) 923-5447 6395 1 influenced the Bureau's decision as to whether or not its 2 prepared to sign the Memorandum of Understanding? 3 MR. BRANDT: I'll just caution the witness not to 4 give any attorney-client communication, but other than 5 that, you may answer. 6 MR. DELAMORE: I couldn't say that that's -- there's 7 been an appeal process ongoing. There's been a settlement 8 discussion process ongoing. And I wouldn't say that those 9 are the reasons that it's taken so long to develop a -- the 10 Memorandum of Understanding, but they may -- they're, 11 obviously, out there as a consideration. 12 MR. BIRMINGHAM: Is it correct that oral argument has 13 been held in United States Court of Appeal for the Ninth 14 Circuit in connection with this appeal? 15 MR. DELAMORE: Yes, in early October of this year. 16 MR. BIRMINGHAM: And is it expected, if you know, 17 whether a decision from that court will be forthcoming in 18 the relatively near future? 19 MR. DELAMORE: I -- I don't know. That's the next 20 step is for them to make a ruling. 21 MR. BIRMINGHAM: I have no further questions. Thank 22 you. 23 C.O. CAFFREY: All right. Thank you, Mr. Birmingham. 24 Mr. Nomellini. Was that an applause for 25 Mr. Nomellini? CAPITOL REPORTERS (916) 923-5447 6396 1 MR. NOMELLINI: Mr. Chairman, Members of the Board 2 Dante John Nomellini for Central Delta Parties. I did not 3 assume that that was applause. 4 I have questions for Mr. Ploss, but I'm going to 5 hold those. I understand we're going to cross -- 6 C.O. CAFFREY: Right, we'll get back to that. 7 MR. NOMELLINI: -- Mr. Delamore first. 8 C.O. CAFFREY: Yes, sir. 9 ---oOo--- 10 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 11 BY CENTRAL DELTA PARTIES 12 BY DANTE JOHN NOMELLINI 13 MR. NOMELLINI: Mr. Delamore, does the Bureau of 14 Reclamation have any policy concerns for the quality of the 15 water in the San Joaquin River upstream at Vernalis? 16 MR. BRANDT: Objection. Vague as to "concerns." 17 MR. NOMELLINI: Yeah. Do you have any policies that 18 would direct the Bureau's concern to the quality in the 19 river? 20 MR. DELAMORE: I don't know how to answer that. I'm 21 not aware. 22 MR. NOMELLINI: All right. Let's take it from a 23 different direction. The Bureau would operate to meet 24 water quality standards set by this Board for water quality 25 in the San Joaquin River, would it not? CAPITOL REPORTERS (916) 923-5447 6397 1 MR. DELAMORE: That's probably a question to be 2 directed to Mr. Ploss. My understanding is the only Bureau 3 permit to operate for water quality is on the New Melones 4 Reservoir. 5 MR. NOMELLINI: All right. Are there water quality 6 standards set with regard to the selenium in relation to 7 the Grasslands Bypass Project? 8 MR. DELAMORE: The Regional Board has established 9 water quality objectives, I believe they're called, in the 10 San Joaquin River for selenium. 11 MR. NOMELLINI: All right. And does the Bureau of 12 Reclamation have any agreements pertaining to steps to be 13 taken to meet such standards? 14 MR. DELAMORE: The Bureau as part of the agreement to 15 allow certain water districts to utilize the Federal 16 facility, the San Luis drain, a portion of it, placed a 17 provision in that agreement that required certain limits on 18 the amount of selenium that could be discharged through the 19 drain. 20 MR. NOMELLINI: All right. Is it fair to state then 21 that the Bureau of Reclamation does have a concern with 22 regard to those limits being met? 23 MR. DELAMORE: It's a condition for the users to 24 continue to use our facility. 25 MR. NOMELLINI: All right. Do you know why the CAPITOL REPORTERS (916) 923-5447 6398 1 Bureau imposed such a limitation as a condition to using 2 the drain? 3 MR. DELAMORE: As part of the environmental review 4 process to -- it was a consideration in limiting any 5 potential impact associated with our action of allowing 6 them to use that facility. 7 MR. NOMELLINI: All right. So, then, the Bureau's 8 concerns are with regard to mitigating impacts associated 9 with a project that they wanted to carry out? 10 MR. DELAMORE: I guess that's a fair 11 characterization, yes. 12 MR. NOMELLINI: All right. Other than the New 13 Melones water quality standard and this particular 14 limitation that we talked about in the agreement pertaining 15 to the use of the drain, do you know of any other concerns 16 for water quality in the San Joaquin River that the Bureau 17 of Reclamation would have? 18 MR. BRANDT: Objection. Vague, again, on "concern." 19 This word "concern" and -- are we talking policies? 20 MR. NOMELLINI: I started with policies. 21 MR. BRANDT: Okay. 22 MR. NOMELLINI: And that wasn't clear. So I went 23 back to the standards. And so is the term "concerns" 24 unclear to you, Mr. Delamore? 25 C.O. CAFFREY: I was about to ask the same question. CAPITOL REPORTERS (916) 923-5447 6399 1 Do you have trouble with the question, Mr. Delamore? 2 MR. DELAMORE: Well, let me try and answer. 3 C.O. CAFFREY: Go ahead, sir. Thank you. 4 MR. DELAMORE: The Bureau of Reclamation is, 5 obviously, a water management organization. And we have a 6 number of activities that attempt to further actions that 7 will improve water quality in the San Joaquin River. I 8 don't know if that addresses your question. 9 MR. NOMELLINI: Well, you're getting warm. Now, what 10 are those actions? You spoke in response to other 11 questions with regard to the adherence to a court order 12 with regard to taking steps towards an out-of-valley drain. 13 Would those fall in the category of concerns with 14 regard to quality in the San Joaquin River? 15 MR. DELAMORE: The Bureau has a concern in assisting 16 to solve the drainage problems in the west side of the San 17 Joaquin Valley, including those areas that drain in to the 18 San Joaquin River. 19 MR. NOMELLINI: All right. Is that concern limited 20 to the impact on the irrigated lands, or does it include a 21 concern for the quality of the water in the river? 22 MR. DELAMORE: Well, to the extent that the 23 irrigation on those lands impact all the water quality of 24 the San Joaquin River, then that's part of the -- part of 25 the universe of problems that we consider and address our CAPITOL REPORTERS (916) 923-5447 6400 1 programs to. 2 MR. NOMELLINI: All right. Is it your testimony that 3 the Bureau has a concern with regard to the quality of the 4 water in the San Joaquin River itself other than meeting 5 the State Board water quality standards? 6 MR. BRANDT: I'm just going to object on "concern." 7 Vague. 8 MR. DELAMORE: You've gotten to -- 9 MR. BRANDT: Wait. You've got to let -- 10 C.O. CAFFREY: Do you understand the question, 11 Mr. Delamore? 12 MR. DELAMORE: No. 13 C.O. CAFFREY: All right. 14 MR. NOMELLINI: All right. 15 C.O. CAFFREY: You want to try it again, 16 Mr. Nomellini, or move on to something else? 17 MR. NOMELLINI: I'm going to try a few more while I'm 18 on it. 19 C.O. CAFFREY: All right. Go ahead, sir. 20 MR. NOMELLINI: You would agree, would you not that 21 the Bureau has a concern for dealing with the drainage of 22 agricultural lands on the west side of the San Joaquin 23 Valley so that agriculture could be sustained on those 24 lands? 25 MR. DELAMORE: Yes. CAPITOL REPORTERS (916) 923-5447 6401 1 MR. NOMELLINI: All right. Now, let's take that same 2 use of the word "concerns" and let's look at the river. 3 Does the Bureau of Reclamation have any concerns for the 4 quality of the water in the San Joaquin River other than 5 the standard at Vernalis, which we talked about, and the 6 limit in the agreement to allow the use of the drain in 7 connection with the Grasslands Bypass Project? 8 MR. DELAMORE: I still have a problem with the word 9 "concern." We have other programs that attempt to address 10 San Joaquin River water quality issues. 11 For example, we are a participant in a program to 12 develop a realtime monitoring system for the river, which 13 hopefully would help to lead to improvements in water 14 quality. So I'm not sure how to answer your question when 15 you say "concern." 16 MR. NOMELLINI: All right. So you have a study, a 17 concern related to a particular study that you're a joint 18 participant in with regard to monitoring that could relate 19 to water quality in the San Joaquin River; is that correct? 20 MR. DELAMORE: Correct. 21 MR. NOMELLINI: All right. Does the Bureau have any 22 concern as to the particular level of the quality of water 23 in the San Joaquin River? 24 MR. DELAMORE: I'm sorry, I'm not sure I understand 25 your question. CAPITOL REPORTERS (916) 923-5447 6402 1 MR. NOMELLINI: Does the Bureau have any concern with 2 regard to -- go ahead. 3 MR. BRANDT: I'm just trying to figure out how -- it 4 sounds like the questioner and the witness are answering 5 right passed each other. 6 MR. NOMELLINI: Nope. 7 MR. BRANDT: We're talking about programs and he's 8 talking about concerns. And I'm just trying to make sure 9 we get a clear record here. And I don't know how to do 10 that. Perhaps, if you -- 11 C.O. CAFFREY: Well, let me just say that some words 12 are more easily defined than others. I tend to put the 13 responsibility on the witness to answer. 14 And by the way, Mr. Delamore, I appreciate your 15 diligence, but if it's not clear to you and you don't know 16 how to answer the question, you only need say so, or if you 17 have an answer give it. But if it's not clear just tell 18 Mr. Nomellini and we'll try it again or something else. 19 Please, proceed. 20 MR. NOMELLINI: You want to read that note first? Go 21 ahead. 22 MR. BRANDT: It's okay. It's from someone. 23 MR. NOMELLINI: Well, whatever, it might help you 24 answer the question. 25 C.O. CAFFREY: I think it says the cafeteria closes CAPITOL REPORTERS (916) 923-5447 6403 1 at 3:00. So you have a little bit of time. Go ahead. 2 MR. NOMELLINI: All right. Does the Bureau of 3 Reclamation have any plans to improve the quality of the 4 water in the San Joaquin River upstream of Vernalis? 5 MR. DELAMORE: No. 6 MR. NOMELLINI: All right. You mentioned in response 7 to questions by another party that the Rainbow Report 8 indicated that solutions would be pursued other than 9 out-of-valley drainage that could postpone the need for a 10 drain. Do you recall that response? 11 MR. DELAMORE: Yes. 12 MR. NOMELLINI: In your opinion, how long could an 13 out-of-valley drain be postponed based on the 14 implementation of the solutions in the Rainbow Report? 15 MR. DELAMORE: Well, I think I can only answer that 16 by referring to the Rainbow Report itself. And it had a 17 time frame to about the year 2040. 18 MR. NOMELLINI: Do you agree with that, that that's a 19 reasonable time frame for the need of an out-of-valley 20 drain? 21 MR. DELAMORE: I guess I wouldn't say I disagree, but 22 I would say that I think that those conclusions and 23 recommendations have to be periodically, or continually 24 reevaluated to see where we are and to check the validity 25 of the assumptions that were made at that time and so CAPITOL REPORTERS (916) 923-5447 6404 1 forth. 2 MR. NOMELLINI: Do you have any concern at the 3 present time? 4 C.O. CAFFREY: Anybody have a synonym? 5 MR. BRANDT: I mean there are legal obligations and 6 there are concerns. I mean we all have concerns, I mean 7 we're here. 8 MR. NOMELLINI: I realize from a legal concerns I 9 know you wouldn't let him answer. 10 MR. BRANDT: Are you talking legal obligations or 11 legal concerns? 12 MR. NOMELLINI: No. In your opinion, Mr. Delamore, 13 are there aspects of non-out-of-valley solutions that you 14 think will not be successful? 15 MR. BRANDT: At this point I'm going to object. This 16 is where -- he's asking for an expert opinion not -- I mean 17 he's here to testify about the facts. And we're happy to 18 testify about the facts and anything that's happened, 19 anything that's gone on, we're happy to testify. 20 If he's reached a conclusion before this time and 21 has done something along those lines, if you can ask it in 22 that tone then we're happy to answer those questions. But 23 when you ask for an expert opinion about something in the 24 future or anything else, then I'm going to have to object 25 and instruct the witness not to answer. CAPITOL REPORTERS (916) 923-5447 6405 1 C.O. CAFFREY: You're objection is noted in the 2 record, but I'm going to instruct the witness to answer the 3 question to the best of his ability. As we stated earlier, 4 even though he may not be presented by the Department of 5 Interior as an expert witness he still has some degree of 6 expertise. 7 He has the context of his expertise and the 8 ability to express an opinion. And it will go to the Board 9 Members to determine the weight and value of that evidence. 10 So, please, answer the question to the best of your ability 11 if you have an answer, Mr. Delamore. 12 MR. DELAMORE: I'm sorry, I'm going to have to ask 13 you repeat the question. 14 MR. NOMELLINI: Let's get it read back if we can. 15 C.O. CAFFREY: Can you read it back, Mary? 16 THE REPORTER: Uh-huh. 17 (Whereupon the question was read back by the Reporter.) 18 MR. BIRMINGHAM: I'm going to object to the question 19 on the grounds it's vague and ambiguous and it lacks 20 foundation. It's not been established yet that this 21 witness knows about all of the in-valley solutions 22 identified by the Rainbow Report. 23 C.O. CAFFREY: All right. That's a different 24 objection. 25 MR. NOMELLINI: Yeah. And I'm not -- if he knows of CAPITOL REPORTERS (916) 923-5447 6406 1 any of them, he can answer the question. 2 C.O. CAFFREY: Mr. Nomellini, you can get to your 3 question if you ask a couple of foundation laying types of 4 questions, if you'll bear with us and do that I think we 5 can proceed. 6 MR. NOMELLINI: All right. Mr. Delamore, are you 7 familiar with the in-valley solutions outlined in the 8 Rainbow Report for drainage? 9 MR. DELAMORE: Yes. 10 MR. NOMELLINI: All right. Could you describe for us 11 what those solutions are? 12 MR. DELAMORE: Well, familiar and being able to list 13 them all, that's two different things. 14 MR. NOMELLINI: Well, the ones that you can recall. 15 MR. DELAMORE: Basically, they were a combination of 16 actions with greater or less emphasis, depending on what 17 subarea of the valley you're in, but they included source 18 control, drainage reuse, shallow-groundwater pumping, 19 limited use of evaporation ponds, discharge to the San 20 Joaquin River, land retirement and institutional changes. 21 And there may be one or two other things that are 22 recommended. 23 MR. NOMELLINI: Take an easy one first, drainage 24 reuse, could you describe for us in more detail what the 25 drainage reuse alternative is? CAPITOL REPORTERS (916) 923-5447 6407 1 MR. DELAMORE: As contemplated in the Rainbow Report 2 it is basically a system of collecting tile water and then 3 using that on a more progressively salt-tolerant 4 vegetation. At that time they were looking at the concept 5 of what is known as agroforestry, a use of eucalyptus trees 6 or other plants that take up a large volume of water, take 7 up and transpire. 8 MR. NOMELLINI: In your opinion, can such a process 9 be used by a particular land -- a particular farmer 10 indefinitely? 11 MR. BRANDT: I'm going to state the same objection, 12 it's calling for expert opinion. 13 C.O. CAFFREY: Say again, Mr. Brandt, I didn't hear 14 the last -- 15 MR. BRANDT: Calls for expert opinion. 16 C.O. CAFFREY: Do you have any opinion, Mr. Delamore? 17 I'll allow you to answer the question. If you don't know 18 the answer, then you don't have to. 19 MR. DELAMORE: Yes. I think I kind of understand. I 20 have an understanding of what the concept intended is and 21 it was intended to be sustainable over the long-term. 22 Because at the other end of this reuse agroforestry system 23 you had a final salt disposal system. In the case of the 24 Rainbow Report those were what they called "bird-safe 25 evaporation ponds." CAPITOL REPORTERS (916) 923-5447 6408 1 MR. NOMELLINI: Okay. Going back now and focusing 2 simply on the drainage reuse process, you'd indicated 3 enlisting evaporation ponds as a separate alternative, did 4 you not? 5 MR. DELAMORE: If I did, I mischaracterize it. Each 6 of these management options were not mutually exclusive. 7 In other words, they were intended to be implemented in 8 conjunction one with the other. 9 MR. NOMELLINI: Okay. Are you familiar with the tile 10 drainage and tailwater reuse in the grasslands drainage 11 project area? 12 MR. DELAMORE: Familiar, but not expert. I mean I'm 13 aware of some of the things that they're doing. 14 MR. NOMELLINI: All right. If we segregated the tile 15 drainage reuse from the evaporation ponds, in your opinion, 16 how long could that process be sustained before an 17 evaporation pond would have to be integrated with it to 18 sustain agriculture? 19 MR. BRANDT: Objection. Calls for an expert opinion. 20 C.O. CAFFREY: Just a moment. I'm going to allow 21 Mr. Delamore to answer the question. Our regulations allow 22 for nonexpert opinion as I stated earlier. So you may 23 answer the question to the best of your ability, sir. 24 MR. MINASIAN: Mr. Chairman, on behalf of the 25 Exchange Contractors could the Chair offer Mr. Brandt a CAPITOL REPORTERS (916) 923-5447 6409 1 continuing objection on this basis so that he will not have 2 to insert it every time? 3 MR. BRANDT: That would be fine. 4 C.O. CAFFREY: The Chair would recognize that and 5 stipulate to that, Mr. Brandt, and save you the trouble. 6 MR. BRANDT: I would appreciate that stipulation. 7 C.O. CAFFREY: All right. Mr. O'Laughlin? 8 MR. O'LAUGHLIN: Can I ask one question? I don't 9 know how we're going to get this cleared up, maybe 10 Mr. Brandt will let us know. My concern at this time in 11 the record is we have these objections. I understand the 12 objections, but is Mr. Brandt now going to make a motion to 13 exclude the testimony that's being offered by Mr. Delamore? 14 Because if that happens, we should understand that 15 that's going to happen, a motion will be made or some other 16 process will be entailed by Mr. Brandt and the Federal 17 Government to exclude the testimony, because it's only fair 18 to the parties that will be asking questions to understand 19 what they have to cover now and what they may have to cover 20 later and whether Mr. Delamore will be coming back. 21 Because I understand the objection has been made, 22 but is the Federal Government truly going to assert to the 23 State Water Resources Control Board, that they do not -- 24 that these witnesses cannot testify as to the scope and 25 extent that they have been, which is different than stating CAPITOL REPORTERS (916) 923-5447 6410 1 their objection for the record? 2 C.O. CAFFREY: Well, go ahead, Mr. Sexton. Then 3 we'll get an answer from Mr. Brandt. Perhaps, what you're 4 going to say is related. Go ahead. 5 MR. SEXTON: Mr. Caffrey, both of these witnesses 6 have been designated as experts by the Department of 7 Interior for purposes of these proceedings. So I fail to 8 understand how an objection can be made that they're not 9 being offered as experts. 10 C.O. CAFFREY: Thank you, Mr. Sexton. 11 Mr. Brandt, do you wish to respond perhaps as 12 specifically as you can to Mr. O'Laughlin's question in 13 particular? 14 MR. BRANDT: Sure. Actually, let me deal with 15 Mr. Sexton's as well. They were identified originally as 16 experts, but they've not been produced, there's been no 17 testimony, they've not put forward on behalf of the United 18 States Government any expert testimony at this point. So 19 that's why we are -- while they may have been designated, 20 they are not being offered as experts. 21 On Mr. O'Laughlin's issue to the extent -- if 22 there is -- if there is expert opinion testimony given 23 then, yes, we would very likely move to exclude it at some 24 point. But at this point Mr. Delamore has been providing 25 factual background as best he can in answering the CAPITOL REPORTERS (916) 923-5447 6411 1 questions. 2 We are still trying to provide the answers to 3 factual background, but, you know, if you're asking for 4 expert opinion and you're looking for expert opinion on 5 behalf of the United States, then if that -- if at some 6 point there is expert opinion given then, yes, at some 7 point we will move to exclude that. But to the extent that 8 Mr. Delamore can answer the question by providing you 9 factual information, then we will do what we can. So we're 10 trying to do as best we can, but it's -- it's a -- 11 C.O. CAFFREY: Does that clear it up for you, 12 Mr. O'Laughlin? 13 C.O. STUBCHAER: Mr. Chairman? 14 C.O. CAFFREY: I'm sorry. Go ahead, Mr. Stubchaer. 15 C.O. STUBCHAER: It does leave one question pending 16 and that is: Given the recent objections you have made, do 17 you consider those answers expert testimony or nonexpert? 18 MR. BRANDT: I think the answers that he gave in the 19 end were not expert testimony. The answers that he's been 20 giving have been factual, this is what the Rainbow Report 21 intended and this is what happened. In those kinds of 22 context that's not expert testimony. 23 C.O. STUBCHAER: Thank you. 24 C.O. CAFFREY: I want to go off the record here for a 25 few minutes and confer with Mr. Stubchaer and the other CAPITOL REPORTERS (916) 923-5447 6412 1 Board Members and Ms. Leidigh to a question that comes to 2 mind regarding all of this. We'll be back in a minute or 3 two. Thank you. 4 (Off the record from 1:51 p.m. to 1:53 p.m.) 5 C.O. CAFFREY: All right. We're back. Just a brief 6 statement. I don't know if it will be clarifying, or make 7 any difference in what we already said. I just want to 8 reiterate that the Board is interested in the information 9 that these gentlemen have to offer here based on their 10 broad experience and expertise, if you will for lack of a 11 better term. And so we want these answers along the lines 12 of how the questioning has been going, we want these 13 answers in the record. 14 It's, certainly, Mr. Brandt's prerogative to make 15 his objections, if he will, at what ever time he deems it 16 necessary if necessary. Nevertheless, we will continue to 17 desire to have this information on the record. If we get 18 to a question which the Board feels truly does go beyond 19 the witnesses' total experience or level of expertise, then 20 we will deal with that at that time. 21 I don't want the ongoing objection authority that 22 we've given you, Mr. Brandt, to preclude you from raising 23 your hand on the basis that I just described. If we really 24 do get outside of that truly broad level of interpretation 25 that we're making here, that will be your call. All right? CAPITOL REPORTERS (916) 923-5447 6413 1 MR. BRANDT: Okay. 2 C.O. CAFFREY: Please, continue. 3 MR. NOMELLINI: I'd like to make a brief statement if 4 I could as to my concerns. I made it earlier, but I'd like 5 it on the record at this point. The Bureau has come into 6 this proceeding voluntarily. They have permits from the 7 Board that they sought, voluntarily, changes in those 8 permits. They've made statements about submitting to the 9 jurisdiction of the Board, of course, preserving as to 10 which court we go to afterwards. 11 They are now taking their own rules and placing 12 them in a level of priority where they are not fully 13 participating in this hearing process as per your Board 14 rules and your conduct of the hearing. And, therefore, I 15 think that is a totally inappropriate action that is 16 deserving of sanction. 17 So at some stage here you may very well see an 18 effort on our part, my part on behalf of my clients to seek 19 some kind of sanction against the Bureau for using this 20 process in a fashion that's limited as they see it by their 21 rules, in other words, their rules dictating this process. 22 And I view that as a very serious matter of 23 principle. These particular questions may not be the most 24 important in the world, but it's the principle that's at 25 issue here that I think goes to the roots of whether or CAPITOL REPORTERS (916) 923-5447 6414 1 not, in fact, the Federal Government is submitting to the 2 jurisdiction of this Board. Enough said. 3 C.O. CAFFREY: Well, I would just add to that, 4 Mr. Nomellini, that as those of us on this Board sit up 5 here we will do our best to continue to rule in fairness to 6 all. I would also observe, which I maybe should have 7 mentioned before, that maybe there's some uniqueness in 8 this situation. 9 I would observe that these witnesses are not 10 witnesses of Mr. Brandt's, per se, they are the adverse 11 witnesses of Ms. Zolezzi and Ms. Harrigfeld. So we will 12 continue to desire their answers on the basis of their 13 total experience. And as I said earlier, Mr. Brandt can 14 raise an objection if he thinks we've gone even beyond that 15 at some point. 16 Please, proceed, sir. 17 MR. NOMELLINI: All right. Mr. Delamore, I'm going 18 to be seeking your opinion. With regard to the drainage 19 reuse option as outlined in the Rainbow Report, is it your 20 opinion that such drainage reuse option in and of itself 21 can be used indefinitely without an adverse impact on 22 agricultural operations on the land? 23 MR. DELAMORE: In and of itself without -- 24 MR. NOMELLINI: Yes, in and of itself. 25 MR. DELAMORE: No. As you progressively reuse the CAPITOL REPORTERS (916) 923-5447 6415 1 water it gets progressively more saline and it has to be 2 dealt with at some point somewhere. 3 MR. NOMELLINI: Could you give me a range as to the 4 period of time and factors that would come into play in 5 determining the feasibility of long-term use of just the 6 drainage reuse option? 7 MR. DELAMORE: I'm not aware where that option is 8 looked at in a vacuum in and of itself. So I think what 9 you're asking -- 10 MR. NOMELLINI: All right. 11 MR. DELAMORE: -- doesn't make sense. 12 MR. NOMELLINI: Hypothetically, if we were to look 13 at -- hypothetically, if we were to look at just the 14 drainage reuse option as used in the Grasslands Drainage 15 Project area in and of itself, how long would it be 16 feasible to continue farming that ground with that option? 17 MR. DELAMORE: I'm afraid you're going to have to 18 clarify by what you mean by the drainage reuse option 19 that's being used in the grasslands. 20 I'm aware that they're recirculating and blending 21 water, but it's not the reuse concept that was -- strictly 22 the reuse concept that was put forward in the Rainbow 23 Report. 24 MR. NOMELLINI: Okay. Let's start with: Could you 25 tell me what the differences are between the Grasslands CAPITOL REPORTERS (916) 923-5447 6416 1 Drainage Project use of tile drainage and tailwater and the 2 drainage reuse option in the Rainbow Report? 3 MR. DELAMORE: In the Rainbow Report the reuse 4 concept was intended to reduce and concentrate the amount 5 of water that had to be dealt with, the so-called "problem 6 water." 7 In other words, the goal of the reuse 8 agroforestry, if you will, concept was to reduce the amount 9 of water into a small quantity that then could be disposed 10 of in an evaporation pond, or other disposal options that 11 may come forward in the future. In the grasslands area 12 there's simply -- it's more of a source control option 13 that's being implemented in the grasslands as I understand 14 it. 15 MR. NOMELLINI: And so is it your testimony that the 16 drainage reuse option in the Rainbow Report with the 17 ultimate disposal of a concentrated level of salt could go 18 on somewhat indefinitely? 19 MR. DELAMORE: If you had the disposal system worked 20 out, yes. 21 MR. NOMELLINI: All right. Now, with regard to the 22 drainage reuse in the Grasslands Drainage Project, how long 23 do you think that process can go on without adversely 24 impacting agricultural use of the land? 25 MR. DELAMORE: As long as they can maintain a salt CAPITOL REPORTERS (916) 923-5447 6417 1 balance in the root zone it can go on indefinitely. 2 MR. NOMELLINI: And what would that depend on, what 3 factors? 4 MR. DELAMORE: Maintaining a salt balance in the root 5 zone. 6 MR. NOMELLINI: All right. And how would you do 7 that? 8 MR. DELAMORE: Applying sufficient water -- I don't 9 know. I'm not an expert in agricultural management, but 10 basically it requires moving the salts out of the root 11 zone. 12 MR. NOMELLINI: All right. And do you know where the 13 salt would go once it was moved out of the root zone? 14 MR. DELAMORE: It would be discharged to the San 15 Joaquin River. 16 MR. NOMELLINI: Would that be a direct discharge? 17 MR. DELAMORE: What do you mean by "direct 18 discharge"? 19 MR. NOMELLINI: Well, through a pipe into the San 20 Joaquin River, or a tributary thereof? 21 MR. DELAMORE: In the San Joaquin Valley Drainage 22 Program recommendation it would be collected and conveyed 23 to an extended San Luis drain to a direct discharge north 24 of the Merced River, yes. 25 MR. NOMELLINI: All right. And is there any indirect CAPITOL REPORTERS (916) 923-5447 6418 1 discharge to the river such as the flow of shallow 2 groundwater into the river? 3 MR. DELAMORE: I'm not an expert in that area. My 4 understanding in the past is that the gradients out there 5 as you approach the river are very flat. I know there is 6 groundwater accretion to the river, but I'm not aware of 7 direct flow, if you will, to the river. 8 MR. NOMELLINI: All right. You wouldn't -- in terms 9 of the groundwater accretion to the river in the grasslands 10 area, do you know if that has salts in it? 11 MR. DELAMORE: It's my understanding that it would 12 have salts in it, yes. 13 MR. NOMELLINI: Do you have any idea what the 14 magnitude of the salt is? 15 MR. DELAMORE: No, I don't. 16 MR. NOMELLINI: You don't have a range of 17 concentrations in mind? 18 MR. DELAMORE: No, I don't. 19 MR. NOMELLINI: Do you agree that the shallow 20 groundwater on the west side of the San Joaquin Valley in 21 the grasslands area, generally, moves from southwest to 22 northeast? 23 MR. DELAMORE: That's my understanding. 24 MR. NOMELLINI: With regard to the shallow 25 groundwater in the Westlands Water District, is it your CAPITOL REPORTERS (916) 923-5447 6419 1 understanding that the movement of that shallow groundwater 2 is from southwest to northeast? 3 MR. DELAMORE: No. 4 MR. NOMELLINI: You don't know, or it does not move 5 in that direction? 6 MR. DELAMORE: Well, Westlands Water District is a 7 large land area. And my understanding is there's probably 8 different directions of flow depending on where you are. 9 But, again, I'm not a groundwater expert and that's about 10 all I can tell you I think. 11 MR. NOMELLINI: All right. Do you have in front of 12 you Westlands' Exhibit 95? 13 MR. DELAMORE: Yes. 14 MR. NOMELLINI: Calling your attention to Exhibit A, 15 do you recognize what is shown on Exhibit A? 16 MR. DELAMORE: Yes. 17 MR. NOMELLINI: And what is shown on Exhibit A? 18 MR. DELAMORE: Without going back to the wording in 19 the agreement, my recollection is the crosshatched area is 20 areas that would not be eligible to receive water 21 associated with the land retirement components of this 22 agreement. 23 MR. NOMELLINI: All right. With regard to Exhibit A, 24 to Westlands' 95, do you agree that the Westlands' Water 25 District boundary is shown on that exhibit? CAPITOL REPORTERS (916) 923-5447 6420 1 MR. BRANDT: Objection. Beyond his expertise. 2 MR. NOMELLINI: Pardon me? 3 MR. BRANDT: This one is clearly beyond his 4 expertise. He doesn't work for Westlands. 5 MR. NOMELLINI: I'll stick -- no, I won't stick -- 6 C.O. CAFFREY: If you don't know the answer to the 7 question, Mr. Delamore, you don't have to answer it. 8 MR. DELAMORE: I'll just answer that there is a line 9 on the map that I would understand to represent the 10 boundaries of Westlands, but I would not verify that. 11 MR. NOMELLINI: All right. With regard to the area 12 on the map shown to be within the boundary of Westlands' 13 Water District, could you tell us what direction you think 14 the shallow groundwater flow is in that particular area, 15 starting from the left-hand side of Exhibit A? 16 MR. BIRMINGHAM: I'm going to object to the question 17 on the grounds that it's ambiguous. The witness has 18 testified that Westlands is a large land area and 19 groundwater moves in different directions within the 20 boundaries of a district, that's all he can say on the 21 subject. He's not an expert. 22 And if Mr. Nomellini wants to ask him some more 23 specific questions, I think Mr. Nomellini should be 24 permitted to do that, but the way that question is phrased 25 it is ambiguous. CAPITOL REPORTERS (916) 923-5447 6421 1 C.O. CAFFREY: Furthermore, if the witness doesn't 2 know the answer to the question he need merely state that 3 fact. 4 MR. DELAMORE: The question was the direction of 5 groundwater flow -- 6 MR. NOMELLINI: Do you know which way the shallow 7 groundwater flows within the area depicted on Exhibit A? 8 And I wanted you to start from the left-hand side of the 9 map recognizing that your previous answer was that it goes 10 in different directions. 11 MR. DELAMORE: The gradients go in different 12 directions, I think is what I meant by my previous answer. 13 I really don't know. All I can say is that I am aware of 14 and have understood in the past that predominant direction 15 of groundwater flow is vertically -- vertical. That 16 there's very little lateral movement from a general 17 perspective in this area, in the entire area. 18 MR. NOMELLINI: Does any of the shallow groundwater 19 in the -- shown on this map, or the boundary -- for the 20 boundary shown on this map as being the Westlands' Water 21 District flow to the San Joaquin River? 22 MR. DELAMORE: I don't know. 23 MR. NOMELLINI: All right. Now, going back you were 24 explaining that the crosshatched area as shown on Exhibit A 25 to Westlands' 95 was an area that -- did you say could use CAPITOL REPORTERS (916) 923-5447 6422 1 the water that would be available from land retirement? 2 MR. DELAMORE: The crosshatched area represents the 3 area that could not use the water. 4 MR. NOMELLINI: Now, with regard to this map then all 5 the crosshatched area could not receive the water that 6 would be made available through land retirement under the 7 settlement agreement; is that correct? 8 MR. DELAMORE: That's my understanding. 9 MR. NOMELLINI: All right. And the non-crosshatched 10 area within the boundary of the Westlands' Water District 11 could receive that water; is that correct? 12 MR. DELAMORE: Correct. 13 MR. NOMELLINI: All right. Why is there a 14 difference, if you know? 15 MR. DELAMORE: Well, it's my understanding that the 16 crosshatched area, I'm having trouble with those words, 17 generally represents the drainage problem area within 18 Westlands. And so it was our purpose in putting that in 19 that we not retire these lands which would help to somewhat 20 reduce the drainage problem and just negate any of those 21 benefits by applying the water elsewhere in areas that have 22 a drainage problem. 23 MR. NOMELLINI: All right. And what is the drainage 24 problem in the crosshatched area as shown on Exhibit A of 25 Westlands' 95? CAPITOL REPORTERS (916) 923-5447 6423 1 MR. DELAMORE: Generally existing are future areas of 2 shallow groundwater within the District. Shallow being I 3 think some -- well, I don't remember specifics, but I'll 4 say less than ten feet, but it may be something different 5 than that. 6 MR. NOMELLINI: And why is that a problem for those 7 lands? 8 MR. DELAMORE: Shallow water tables are -- they cause 9 problems with agriculture. 10 MR. NOMELLINI: All right. And do you have any 11 understanding as to why they cause problems for 12 agriculture? 13 MR. DELAMORE: Water logging or salinizataion of the 14 root zone. 15 MR. NOMELLINI: All right. So water could come up in 16 the root zone and thereby inhibit root growth, is that one 17 problem? 18 MR. DELAMORE: Correct. 19 MR. NOMELLINI: And also the shallow water could come 20 up into the root zone bringing up with it salts, right? 21 MR. DELAMORE: Correct. 22 MR. NOMELLINI: Now, what is the Rainbow Report 23 solution for the drainage problem, if you know, in the 24 crosshatched area shown on Exhibit A to Westlands' 95? 25 MR. DELAMORE: I don't think the Rainbow had a CAPITOL REPORTERS (916) 923-5447 6424 1 solution that was that specific. Again though the, quote, 2 "solution of the management techniques for the Westlands 3 area" generally included most of the things that I listed. 4 It did not include discharge to the San Joaquin River. 5 MR. NOMELLINI: Do you know whether or not the Bureau 6 has any objection to improvement of the water quality of 7 the San Joaquin River upstream of the Merced? 8 MR. DELAMORE: I'm not aware of any objection, no. 9 MR. NOMELLINI: Are you familiar with the permitted 10 places of use of the Bureau's permits for water deliveries 11 to the west side of the San Joaquin Valley? 12 MR. DELAMORE: No. I haven't worked specifically in 13 that area. 14 MR. NOMELLINI: Okay. That's all I have. Thank you. 15 C.O. CAFFREY: Thank you, Mr. Nomellini. 16 Mr. Gallery. Good afternoon, sir. 17 ---oOo--- 18 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 19 BY TUOLUMNE UTILITIES DISTRICT 20 BY DANIEL GALLERY 21 MR. GALLERY: Thank you. Good afternoon, 22 Mr. Chairman and Board Members. 23 Mr. Delamore, I represent Tuolumne Utilities 24 District in Tuolumne County. We're right next to New 25 Melones Reservoir and our interest is in getting some water CAPITOL REPORTERS (916) 923-5447 6425 1 out of the reservoir. 2 I wanted to first direct your attention to some 3 testimony of a Bureau witness in 1972 before the Board 4 which led to Decision 1422. If I could ask you to look at 5 this testimony which is Stockton Exhibit Number -- Stockton 6 Exhibit Number 22. 7 MS. WHITNEY: Stockton East Water District. 8 MR. GALLERY: I'm sorry, Stockton East Water 9 District's Exhibit Number 22. I'm not sure what the name 10 of this witness was. Are you familiar with this testimony, 11 Mr. Delamore? 12 MR. DELAMORE: No, I'm not. 13 MR. GALLERY: You haven't seen it before? 14 MR. DELAMORE: No. 15 MR. GALLERY: All right. You've been -- what is your 16 title again? 17 MR. DELAMORE: My title is currently Chief of San 18 Joaquin Drainage Office. 19 MR. GALLERY: And you've been the chief for how long? 20 MR. DELAMORE: I've had different organizational 21 titles with basically the same function -- 22 MR. GALLERY: I see. 23 MR. DELAMORE: -- for approximately ten years. 24 MR. GALLERY: Prior to that, prior to the ten years 25 what were you doing? CAPITOL REPORTERS (916) 923-5447 6426 1 MR. DELAMORE: I worked for the Bureau of Reclamation 2 for approximately 9 years in the Boulder City, Nevada 3 office. And I worked on various programs down there. 4 MR. GALLERY: I see. 5 MR. DELAMORE: I came here and started working on the 6 Kesterson program. 7 MR. GALLERY: All right. I'd like you to turn to 8 Page 213 of this Bureau testimony. And what the Bureau 9 witness has been describing is that the Bureau studies 10 indicated that it was 70,000 acre-feet they thought that 11 they could sustain the Vernalis water quality standards of 12 500 parts per million of TDS. 13 And then the Bureau attorney on Line 22 of Page 14 213 asks the question, "Will the Bureau always be able to 15 meet the standards at Vernalis with the New Melones water?" 16 And the Bureau witness answered, "No, not entirely 17 as discussed in Staff Exhibit 12, which is the 18 Environmental Impact Statement. Recent studies dot, dot, 19 dot, indicate that the San Joaquin Valley has been 20 functioning as a salt trap with the total quantities of 21 dissolved solids entering the valley system being greater 22 than accountable in the outflow. If this salt build up 23 continues, adverse affects on the municipal and industrial 24 agriculture uses in the San Joaquin Valley will continue to 25 increase." CAPITOL REPORTERS (916) 923-5447 6427 1 And my question is: Do you know what area he was 2 talking about when he said that the San Joaquin Valley 3 appeared to be functioning as a salt trap if he's 4 testifying in 1972? 5 MR. BRANDT: I'm going to object, because this 6 witness has never seen it. He has no idea. He can't 7 authenticate it. So there's no basis to ask this witness. 8 MR. GALLERY: Well, then -- 9 C.O. CAFFREY: Sustained. 10 MR. GALLERY: Have you in your work, Mr. Delamore, 11 studied the history of the salt build up in the San Joaquin 12 Valley? 13 MR. DELAMORE: I would have to say, yes, I'm, you 14 know, familiar through various sources and have experience 15 with the drainage history. 16 MR. GALLERY: All right. Again, the evidence here 17 has shown there's been a significant, or a substantial 18 build up in the salt load over the years as we've 19 progressed since 1972. Can you tell us from your -- based 20 upon your knowledge and your background what the cause of 21 that has been? That is: Why has the salt load been 22 increasing beyond the expectations of the Bureau in 1972? 23 MR. BRANDT: The last question, objection, compound 24 because I've heard three questions there. And, also, 25 ambiguous, or vague, because you're saying the testimony CAPITOL REPORTERS (916) 923-5447 6428 1 here, are we talking in this hearing? Are we still talking 2 about this document we got before? 3 C.O. CAFFREY: Thank you. 4 MR. GALLERY: I'm sorry. Let me clear it up. 5 C.O. CAFFREY: Thank you, Mr. Brandt. Go ahead, 6 Mr. Gallery. 7 MR. GALLERY: The testimony we've heard in this 8 hearing in the past few months, Mr. Delamore, has indicated 9 this great increase in salt load since the 1970's is coming 10 out of the Sacramento -- the San Joaquin Valley and in 11 particular the west side. 12 The question is: What is the reason for the 13 increase that the Bureau did not foresee in 1972? 14 MR. DELAMORE: Well, I guess I don't know what you're 15 referring to as far as the increase and what the Bureau did 16 not know in 1972. So -- 17 MR. GALLERY: Well, have you -- are you aware that 18 the salt load coming into the San Joaquin River has been 19 increasing since 1972? 20 MR. BRANDT: Only since 1972? Objection. Vague. 21 Only since 1972, or including 1972? 22 MR. GALLERY: Well, since 1972. The Bureau witness 23 was testifying in 1972. 24 MR. BRANDT: If you can answer. 25 MR. DELAMORE: I don't know. I guess I'd just offer CAPITOL REPORTERS (916) 923-5447 6429 1 that I've seen -- or I'm aware that the San Joaquin River 2 is a highly variable -- has a highly variable flow. And 3 the salt discharge is a function of that and a number of 4 other things. So I'm not -- I guess I'm not entirely sure 5 of how much salt increase in '72 or before that there is -- 6 MR. GALLERY: You're not -- 7 MR. DELAMORE: -- to offer reasons why that might be 8 increasing. It can increase in any given year, or a period 9 of time just simply as a function of the hydrology of the 10 basin. 11 MR. GALLERY: Would the -- would you agree that the 12 water that is brought into the west side of the valley 13 through the Delta-Mendota Canal is the major cause of the 14 salt load that's coming into the San Joaquin River? 15 MR. DELAMORE: There is a lot of water imported into 16 the valley and it contains salt. Some of it goes into 17 areas that will then return to the San Joaquin River. And 18 some of it goes into the Tuolumne hydrologic basin. 19 MR. GALLERY: Which is not coming into the San 20 Joaquin River, is it? 21 MR. DELAMORE: Generally not. 22 MR. GALLERY: Yes. You've been testifying, or 23 they've been asking you questions about the San Luis drain, 24 which was the subject of the settlement agreement with 25 Westlands. Would the San Luis drain only drain the lands CAPITOL REPORTERS (916) 923-5447 6430 1 within Westlands Water District? 2 MR. DELAMORE: The San Luis drain was authorized 3 under the San Luis unit to serve the unit. There was also 4 an authorization to contract with other users to utilize 5 the drain. But as the history of the drain developed over 6 time it -- there was plans for a State and Federal drain. 7 But specifically the San Luis drain as it was constructed 8 was authorized under the San Luis unit to serve the San 9 Luis unit. 10 MR. GALLERY: Only the San Luis unit? 11 MR. DELAMORE: Again, the authorization permitted 12 contracts -- contracting with other users outside the San 13 Luis unit. 14 MR. GALLERY: All right. My impression is, and I'd 15 like you to correct me if I'm wrong, my impression is that 16 the San Luis unit, the drainage in the San Luis unit 17 currently is not coming out of the San Luis area into the 18 San Joaquin River, but is being retained there. Is that -- 19 is that essentially correct, or is that a misunderstanding? 20 MR. DELAMORE: Well, my understanding would be that 21 the largest portion of the San Luis unit is Westlands Water 22 District. And the -- and, again, my understanding is the 23 largest portion of the Westlands lies within the Tuolumne 24 Lake -- 25 MR. GALLERY: Drainage area? CAPITOL REPORTERS (916) 923-5447 6431 1 MR. DELAMORE: -- drainage area. And, again, it's 2 also my understanding that generally the hydrologic 3 movement in that area is predominantly vertical. So I've 4 come to the understanding that most of the salts are moving 5 downward into the groundwater aquifer. 6 MR. GALLERY: All right. So even if the San Luis 7 drain were to become feasible and were to be completed it 8 would not provide any drainage relief to the -- to what I 9 would call the grasslands watershed; is that correct? 10 MR. DELAMORE: Again, it may or may not. There's 11 portions of the San Luis unit that are in the grasslands 12 watershed. And there is, again, within the authorization 13 the -- I don't know what the terminology is, permission, if 14 you will, to service other lands, to enter into contracts 15 to service other lands. 16 And it's also my understanding that in designing 17 the drain the Bureau engineers in those days were looking 18 at probably serving more than just the San Luis unit. 19 MR. GALLERY: Do you know if any of those districts 20 outside of the San Luis area committed themselves to 21 participate in the drain? 22 MR. DELAMORE: No, not to my knowledge. 23 MR. GALLERY: That they did not -- they have not? 24 MR. DELAMORE: No, not to my knowledge. But -- I'll 25 leave it at that. CAPITOL REPORTERS (916) 923-5447 6432 1 MR. GALLERY: Okay. I wanted to hand you a copy of 2 Page 33 of the Bay-Delta Water Quality Control Plan which 3 is the subject of this hearing. And I have an overhead. 4 Perhaps, Karna, you would help me put this up. 5 Page 33 of the water -- Bay-Delta Water Quality 6 Control Plan that was adopted by the Board in May '95 which 7 is Staff Exhibit 7-E, at the top of the page -- is that out 8 of focus, or is that my glasses? 9 MR. BRANDT: It's your glasses I think. I see it. 10 MR. GALLERY: You see it, all right. Well, 11 Mr. Delamore, the Bay-Delta Plan of the Board states at the 12 top of the page it says, 13 (Reading): 14 "Inadequate drainage and accumulating salt and 15 trace elements are increasingly persistent in 16 many parts of the San Joaquin Valley. These 17 drainage problems threaten water quality, 18 agricultural, fish and wildlife and public 19 health. Ultimately it will be necessary for 20 in-basin management of salts to be supplemented 21 by the disposal of salts outside of the valley 22 for the protection of these beneficial uses to 23 continue." 24 And then the next paragraph goes on to state, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 6433 1 "USBR should reevaluate alternatives for 2 completing the drain to discharge salts from 3 agricultural drainage areas outside of the San 4 Joaquin Valley and pursue appropriate permits. 5 This evaluation should include the development 6 of information of the potential effects on fish 7 and wildlife habitat and population of receiving 8 waters and the physical institution of economic 9 feasibility of various alternatives." 10 It goes on to say that, 11 (Reading): 12 "The current law prohibits discharge of the 13 valley drainage into the Monterey Bay. It's not 14 the intent of this plan to reopen this issue." 15 Now, in connection with that first sentence in the 16 second paragraph, "The USBR should reevaluate alternatives 17 for completing a drain to discharge salt from agricultural 18 drainage," to your knowledge, is the Bureau doing anything 19 presently in response to that directive in the plan? 20 MR. DELAMORE: The Bureau is a participant along with 21 Department of Water -- well, I don't know if I can name 22 them all, but seven other State and Federal agencies in the 23 ongoing San Joaquin Valley Drainage Implementation Program. 24 And one of the activities currently underway in 25 that program is to take a look at the status and CAPITOL REPORTERS (916) 923-5447 6434 1 effectiveness, the status of implementation and the 2 effectiveness of any of the so-called Rainbow Report 3 recommendations. And based on that to then go into a 4 program to look at what other things need to be done to 5 either further stimulate those actions, or to look at other 6 needs and opportunities. 7 MR. GALLERY: This seven -- did you say there's seven 8 governmental entities in this program -- 9 MR. DELAMORE: That's correct. 10 MR. GALLERY: -- that you mentioned? And is that an 11 outgrowth of the Rainbow Plan? 12 MR. DELAMORE: Yes, it is. 13 MR. GALLERY: Let's go back to the Rainbow Plan for a 14 moment. It's entitled, "A Management Plan for Agricultural 15 Subsurface Drainage and Related Problems in the West Side 16 San Joaquin." 17 Did I understand you to testify that the Bureau's 18 policy on the resolution of the drainage problems is what 19 is set forth in this plan? 20 MR. DELAMORE: That's my understanding of the last -- 21 both State and Federal statement on ways to approach the 22 drainage. That's my understanding of the last official 23 statement of both the State and the Department of Interior 24 on how to address the drainage problem. 25 MR. GALLERY: All right. And you're the guy that is CAPITOL REPORTERS (916) 923-5447 6435 1 in charge of doing whatever the Bureau is going to do in 2 connection with this plan? 3 MR. DELAMORE: I guess that would be accurate, yes. 4 MR. GALLERY: And what does your office consist of in 5 terms of people in going -- in dealing with drainage 6 problems that you're concerned with? 7 MR. DELAMORE: We have a very small staff of three of 8 us. Most of our work is done -- you but when I say that, 9 there's resources both within the Bureau and out of 10 specific disciplines that we made that we may call upon and 11 assign tasks to. 12 MR. GALLERY: Are you or your staff -- this plan as I 13 understand it lays out different methods of dealing with 14 the drainage problem on an in-valley basis. That is not 15 export, but dealing with the problem in-valley; is that 16 correct? 17 MR. DELAMORE: I'm sorry? 18 MR. GALLERY: The plan -- the plan is -- the 19 conclusion of the plan is to try to find in-valley 20 solutions rather than out-of-valley solutions; is that the 21 thrust of it? 22 MR. DELAMORE: I would say so, yeah. The plan 23 focuses on in-valley management actions. And it 24 acknowledges in there that all of those actions would be 25 necessary prerequisites to looking at an out-of-valley. In CAPITOL REPORTERS (916) 923-5447 6436 1 other words, a lot of the plan is geared around reducing 2 the amount of water that has to be dealt with. 3 MR. GALLERY: Yeah. 4 MR. DELAMORE: Putting it under control through the 5 reuse systems we were talking about earlier. 6 MR. GALLERY: All right. Now, one of the first 7 things that is listed in the plan of -- the recommended 8 plan is source control; is that correct? 9 MR. DELAMORE: Yes. 10 MR. GALLERY: Source control? 11 MR. DELAMORE: Yes. 12 MR. GALLERY: Now, this is entitled "a plan." Does 13 source control mean the district themselves should look at 14 means of source control? 15 MR. DELAMORE: Yes, I think -- yes. 16 MR. GALLERY: And is it -- is it -- there's nothing 17 in this plan that requires the districts to carry out a 18 source control plan, this is just what is recommended that 19 these people do? 20 MR. DELAMORE: That's correct. 21 MR. GALLERY: And there's no compulsion on them as a 22 result of this plan to carry out source control? 23 MR. DELAMORE: That's correct. 24 MR. GALLERY: On drainage reuse, if I ask the same 25 question on drainage reuse, would your answer be the same, CAPITOL REPORTERS (916) 923-5447 6437 1 that it's up to the districts to carry it out? 2 MR. DELAMORE: Yes. 3 MR. GALLERY: Same answer to the same question on 4 evaporation systems? 5 MR. DELAMORE: Yes. 6 MR. GALLERY: And land retirement? 7 MR. DELAMORE: Yes. Yes. 8 MR. GALLERY: All of these things are dependent upon 9 the discharging entities adopting these programs that are 10 recommended; is that correct? 11 MR. DELAMORE: That's correct. There's nothing in 12 there that imposes, or specifies responsible entities. I 13 mean there's suggestions where things are most effectively 14 carried out and many of them are according to that program, 15 most effectively carried out at the local level. 16 MR. GALLERY: Well, does the Bureau have in effect 17 any program to encourage the districts to go ahead with 18 these programs? 19 MR. DELAMORE: Yes. 20 MR. GALLERY: And what are those? 21 MR. DELAMORE: Well, I'm not sure I'm aware of all of 22 them, but I am aware, for example, of the Central Valley 23 Improvement Act mandated water conservation plans, for 24 example, by the districts. It authorized the Federal 25 Government to participate in a land retirement program. I CAPITOL REPORTERS (916) 923-5447 6438 1 am sure there's other incentives, or various programs out 2 there that I'm probably not thinking of. 3 MR. GALLERY: All right. Does the -- have you 4 studied the possibility of recirculation of water pumped at 5 the -- into the Delta-Mendota Canal towards helping the 6 drainage problem? 7 MR. DELAMORE: I'm just aware of the proposal. I 8 haven't really studied it in detail. 9 MR. GALLERY: I see. Is it a proposal by the Bureau, 10 or proposal by others? 11 MR. DELAMORE: I'm aware of a proposal, I think, 12 originating with the South Delta Water Agency. 13 MR. GALLERY: Do you know if the Bureau has a 14 position on recirculation by repumping? 15 MR. DELAMORE: I'm not aware. 16 MR. GALLERY: That's all I have, Mr. Chairman. Thank 17 you. 18 C.O. CAFFREY: All right. Thank you, Mr. Gallery. 19 Why don't we take a break. And then we'll come back and 20 hear from Ms. Cahill and Mr. Minasian. 21 MR. BRANDT: Mr. Chairman, if I may just add to that? 22 C.O. CAFFREY: Yes, Mr. Brandt. 23 MR. BRANDT: Mr. Ploss has a presentation he needs to 24 make across the street. I think that most of the questions 25 will focus on Mr. Delamore. I think that would take most CAPITOL REPORTERS (916) 923-5447 6439 1 of the rest of the afternoon. Would it be possible for me 2 to let him go so that he can come back? 3 C.O. CAFFREY: Let me ask: Ms. Zolezzi, are you 4 going to have redirect? 5 MR. BRANDT: He will be back. 6 C.O. CAFFREY: I'm talking about redirect for 7 Mr. Delamore. 8 MS. ZOLEZZI: Not at the moment. 9 C.O. CAFFREY: Not at the moment. Okay. When would 10 you be back, Mr. Ploss? 11 MR. PLOSS: Tomorrow morning. 12 C.O. CAFFREY: Tomorrow morning. It just means that 13 we might have to quit a little early today and I know that 14 would break everybody's hearts. 15 MR. BRANDT: He will probably take up most of the 16 rest of the afternoon. 17 MR. BIRMINGHAM: Can we go off the record for a 18 moment? 19 C.O. CAFFREY: Go off the record for a moment, 20 absolutely. Do you want me to release Mr. Ploss first? 21 MR. BRANDT: Yes. 22 C.O. CAFFREY: We're still on the record. Mr. Ploss, 23 you're excused until tomorrow morning and then we'll go off 24 the record for a break. We're off the record. And first 25 we'll hear from Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 6440 1 MR. BIRMINGHAM: I hoped to do this while Ms. Thomas 2 was out of the room, but some of the people in the room may 3 be aware that Ms. Thomas after this Saturday will no longer 4 be Ms. Thomas. In fact she will be Ms. Minaberrigari -- or 5 Mrs. Minaberrigari. 6 And I was going to invite everyone, including the 7 Board Members with Mr. Nomellini's permission, because I 8 don't want anybody to interpret this as a bribe, but invite 9 you all to go someplace early to celebrate. And I would 10 offer to buy everyone a drink to celebrate Ms. Thomas' 11 upcoming marriage. 12 C.O. CAFFREY: How nice of you. 13 MR. BIRMINGHAM: So quitting early would be 14 absolutely consistent with that. 15 C.O. CAFFREY: Well, let me add both off and on the 16 record, you can figure that one out, Mary, my 17 congratulations to Ms. Thomas. I should say "Best wishes 18 to Ms. Thomas and congratulations to the soon-to-be groom. 19 MS. THOMAS: Thank you. 20 C.O. CAFFREY: That's wonderful. With that we'll 21 take a 12-minute break and come back and go with all 22 dispatch. 23 (Recess taken from 2:37 p.m. to 2:54 p.m.) 24 C.O. CAFFREY: We are back on the record. Good 25 afternoon. And I believe we're going to start -- restart CAPITOL REPORTERS (916) 923-5447 6441 1 cross-examination with Ms. Cahill. Good afternoon. 2 ---oOo--- 3 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 4 BY THE CITY OF STOCKTON 5 BY VIRGINIA CAHILL 6 MS. CAHILL: Good afternoon. Mr. Delamore, I'm 7 Virginia Cahill. I represent the City of Stockton. Is it 8 fair to say that in the San Joaquin drainage office your 9 focus is primarily on finding drainage solutions for the 10 lands that receive Central Valley Project water? 11 MR. DELAMORE: That's correct, yes. 12 MS. CAHILL: And do you also focus on the conditions 13 in the San Joaquin River itself as a result of the drainage 14 that does enter the river? 15 MR. DELAMORE: Yes. 16 MS. CAHILL: When you were asked about USBR policies 17 you said they were -- some of them were contained in the 18 Rainbow Report. And you said one of the recommendations 19 for the grasslands was continued discharge to the San 20 Joaquin River while meeting water quality objectives. 21 Is that an accurate characterization of what you 22 said? 23 MR. DELAMORE: Yes. And I was trying to characterize 24 what's stated in the so-called Rainbow Report. 25 MS. CAHILL: How do you determine when the water CAPITOL REPORTERS (916) 923-5447 6442 1 quality objectives are being met? 2 MR. DELAMORE: The Regional Board does that. 3 MS. CAHILL: All right. And to your knowledge are 4 the water quality standards at Vernalis always being met? 5 MR. DELAMORE: No. I understand they are exceeded at 6 times. 7 MS. CAHILL: Okay. In that case, is it appropriate 8 to use the San Joaquin River as a drain? 9 MR. DELAMORE: That wouldn't be for me to determine 10 what is and isn't appropriate. 11 MS. CAHILL: Okay. You also indicated that the river 12 has some assimilative capacity; is that right? 13 MR. DELAMORE: That's correct. 14 MS. CAHILL: Okay. Typically, do you determine 15 assimilative capacity at the point of discharge? 16 MR. BIRMINGHAM: I'm going to object to the question 17 on the ground it lacks foundation. Ms. Cahill has asked a 18 question: Typically, what's done? And I think she's needs 19 to lay additional foundation. Under what circumstances are 20 we talking about? 21 MS. CAHILL: Well, when you were referring to 22 assimilative capacity did you mean the ability of the 23 receiving waters to accept the discharge without violating 24 a water quality standard? 25 MR. DELAMORE: Yes, that's the sense that I was using CAPITOL REPORTERS (916) 923-5447 6443 1 the term "assimilative capacity." 2 MS. CAHILL: Okay. And in that case then 3 assimilative capacity refers to the water at the point of 4 discharge; is that right? 5 MR. DELAMORE: I was not referring to it in that 6 sense, no. It's more -- my understanding of the term 7 "assimilative capacity" is the capacity to absorb 8 constituents and stay below a set water quality objective, 9 whatever that may be. 10 MS. CAHILL: Okay. But the absorption, is that 11 happening at the point where the drainage is entering the 12 receiving water? 13 MR. DELAMORE: I would understand it to mean at the 14 point where there is a water quality objective set. If 15 there was an objective set at the point of discharge, then 16 that's where it would be. Currently there isn't. 17 MS. CAHILL: So you would consider assimilative 18 capacity only at the point where there is, first, a water 19 quality objective not at the point in which the drainage 20 enters the waterway? 21 MR. DELAMORE: I'm sorry. Could you maybe restate 22 that, or say it again? 23 MS. CAHILL: Yeah. If you have a water quality 24 standard, hypothetically, of 500 TDS just downstream from 25 Mud Slough, would you consider the assimilative capacity to CAPITOL REPORTERS (916) 923-5447 6444 1 be measured at the point of that first standard? 2 MR. DELAMORE: Yes. 3 MS. CAHILL: And so -- okay. Are you aware if there 4 are beneficial uses in the San Joaquin River between Mud 5 Slough and Vernalis? 6 MR. DELAMORE: I'm generally aware that there is, 7 yes. 8 MS. CAHILL: And what would some of those uses be? 9 MR. DELAMORE: I'm sorry, I couldn't recite them for 10 you. I'm sure I'd do a very poor job of that. 11 MS. CAHILL: Okay. But irrigation, are you aware 12 there is irrigation on that stretch? 13 MR. DELAMORE: I would expect so. 14 MS. CAHILL: And you're aware that fish live in that 15 area? 16 MR. DELAMORE: Yes. 17 MS. CAHILL: Okay. Have you considered in your 18 office what an appropriate TDS level would be to protect 19 the beneficial uses in that stretch of the river even in 20 the absence of a Regional Board water quality standard? 21 MR. DELAMORE: I guess the answer would be, no. 22 We've done modeling to some extent, or we've caused some 23 modeling to be done, but we work with established 24 objectives. 25 MS. CAHILL: Do you know how many miles it is between CAPITOL REPORTERS (916) 923-5447 6445 1 the discharge from Mud Slough and Vernalis? 2 MR. DELAMORE: No, not with any precision. 3 MS. CAHILL: Would it be fair to say more than 30 4 miles? 5 MR. DELAMORE: My understanding is it would be 6 somewhere around maybe 30 to 50 miles. 7 MS. CAHILL: Okay. If the water quality standard 8 for -- at Vernalis were still, it's not, but if it were 9 still 500 TDS and it's exceeded at Vernalis, is it likely 10 that it's exceeded all the way upstream to Mud Slough? 11 MR. DELAMORE: Well, I don't -- it's -- I guess I 12 would answer by saying if it's greater than 500 TDS at 13 Vernalis it's probably greater than 500 TDS upstream. 14 MS. CAHILL: Are you aware of the stretch of the San 15 Joaquin River that's on the Clean Water Act Section 303-D 16 list of impaired water bodies for salinity? 17 MR. DELAMORE: Again, that's something that I 18 believe, yes, I'm aware of. 19 MS. CAHILL: And can you tell us how far upstream 20 that stretch extends? 21 MR. DELAMORE: Again, not with any precision, no. 22 MS. CAHILL: Okay. But certainly upstream of Mud 23 Slough; is that right? 24 MR. DELAMORE: I don't know. 25 MS. CAHILL: If it did extend upstream of Mud Slough CAPITOL REPORTERS (916) 923-5447 6446 1 so that we have on an official Regional Board and State 2 Board finding that that stretch of the river is impaired 3 for water quality for salinity, then, wouldn't you have to 4 agree that discharges many times the 500 TDS would be 5 exceeding the assimilative capacity of the river in that 6 stretch? 7 MR. DELAMORE: I'm sorry, say again. 8 MS. CAHILL: Okay. If we have salinity impaired -- 9 the water is impaired for salinity from Mud Slough 10 downstream to Vernalis, wouldn't discharges that are 11 several times a 500-TDS level exceed the assimilative 12 capacity of the river? 13 MR. BRANDT: Objection. Vague. 14 MS. CAHILL: Okay. Let me come at it another way. 15 C.O. CAFFREY: Thank you. 16 MS. CAHILL: If the river is already impaired for 17 water quality for salinity, is there any assimilative 18 capacity left in that water? 19 MR. DELAMORE: I, frankly, don't know what goes into 20 a determination or classification of impaired. So I'm not 21 sure how to answer your question. 22 MS. CAHILL: To get back to the idea just a bit of 23 assimilative capacity, if you have a discharge that enters 24 a water body do you believe it's appropriate to -- you were 25 saying that you try to meet a water quality standard. But CAPITOL REPORTERS (916) 923-5447 6447 1 in the absence of a standard, is it appropriate to have a 2 discharge that results in a concentration of salinity many 3 times greater than 500 TDS for anywhere between 30 and 50 4 miles before it is finally diluted down to the appropriate 5 standard, would you consider that to be the river having 6 adequate assimilative capacity? 7 MR. BRANDT: Objection. Compound and vague. 8 MS. CAHILL: In determining -- 9 C.O. CAFFREY: I apologize. I didn't hear it. 10 MS. CAHILL: I'm going to restate it. 11 C.O. CAFFREY: All right. Thank you. 12 MS. CAHILL: In determining the assimilative capacity 13 of the river, do you look as much as 30 to 50 miles 14 downstream to where there may be artificial dilution flows 15 coming in in determining what the assimilative capacity of 16 the stream is? 17 MR. DELAMORE: Yes. As I mentioned, the modeling 18 studies that I'm aware of that have been done have used the 19 established water quality objectives as basically the 20 determining parameter in looking at assimilative capacity. 21 And there are -- those include the only salinity objective 22 that's established is at Vernalis. 23 There are boron, selenium and I believe molybdenum 24 standards that are set upstream. So I think the -- I 25 believe the modeling that has been done has also looked at CAPITOL REPORTERS (916) 923-5447 6448 1 those parameters. 2 MS. CAHILL: Okay. If the Regional Water Quality 3 Control Board were to set in its basin plan amendments, or 4 at the direction of this Board a new water quality standard 5 at Mud Slough to protect beneficial uses in the part of 6 river near Mud Slough, would you then find that the 7 assimilative capacity of the river would be limited to -- 8 would be based on that standard at that point? 9 MR. DELAMORE: If that's where the discharge was 10 going, yes. 11 MS. CAHILL: If there were a water quality standard 12 of 500 TDS immediately downstream of Mud Slough that had to 13 be met, do you believe in that case that an out-of-valley 14 drain could be postponed for decades? 15 MR. DELAMORE: Yes. 16 MS. CAHILL: And that would be -- how would that be 17 done? 18 MR. DELAMORE: As laid out in the Rainbow Report, I 19 mentioned the plan for river discharge included 20 approximately an 8-mile extension of the discharge point 21 down to below the confluence of the Merced River. 22 MS. CAHILL: Well, if there were a standard at 23 Vernalis and a similar standard at Mud Slough, do you 24 believe that water with a concentration many times that 25 level could be discharged in between those two measuring CAPITOL REPORTERS (916) 923-5447 6449 1 points without violating water quality standards? 2 MR. DELAMORE: At times, yes. 3 MS. CAHILL: You indicated that in order for the 4 Grasslands Project to use Bureau facilities there were 5 requirements that certain selenium standards be met. Is 6 that right? 7 MR. DELAMORE: There were limited -- monthly and 8 annual limits on the total pounds of selenium that could be 9 discharged. 10 MS. CAHILL: Okay. And did the Bureau set any 11 similar limits for salinity in that drainage? 12 MR. DELAMORE: No. 13 MS. CAHILL: And why not? 14 MR. DELAMORE: Because the project allowing use of 15 drain had no impact on salinity flowing to the San Joaquin 16 River. The reason there were limits mitigation, if you 17 will, or limits put on selenium. Selenium is unlike other 18 constituents, it under goes transformations in transit. 19 And by the way the drain water was formally routed 20 through the wetlands, there was a loss of selenium between 21 where it left the agricultural area and where it entered 22 the river. Whereas for selenium that's not the case. 23 MS. CAHILL: Is there any -- I don't want to use 24 Mr. Nomellini's word "concern." Is there any level of 25 salinity that would cause the Bureau to require reductions CAPITOL REPORTERS (916) 923-5447 6450 1 in concentrations before its facilities were used for a 2 drainage discharge? 3 MR. DELAMORE: Is there any limit? I'm sorry? 4 MS. CAHILL: Yeah. Is there any level of salinity 5 concentration that is so high that you wouldn't allow it 6 because of its impacts on the San Joaquin River? 7 MR. DELAMORE: I can't answer that. I don't know. 8 MS. CAHILL: Okay. So do you agree that the 9 discharges coming out of Mud Slough for salinity are, in 10 fact, several times the Vernalis salinity standard? 11 MR. DELAMORE: That's my understanding, yes. 12 MS. CAHILL: And they do exceed the ability of the 13 river to dilute them at the point where they come into the 14 river down to what would be the Vernalis standard? 15 MR. DELAMORE: I'm sure they do at times. 16 MS. CAHILL: I think that's it. Thank you. 17 C.O. CAFFREY: All right. Thank you, Ms. Cahill. 18 Mr. Minasian. 19 ---oOo--- 20 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 21 BY THE EXCHANGE CONTRACTORS 22 BY PAUL MINASIAN 23 MR. MINASIAN: Mr. Delamore, you've worked with the 24 Bureau of Reclamation for how many years? 25 MR. DELAMORE: Almost 20. CAPITOL REPORTERS (916) 923-5447 6451 1 MR. MINASIAN: Okay. And in the course of working 2 with them in your present position regarding drainage and 3 in other positions, have you learned how the Bureau 4 establishes policy and communicates that to people in 5 positions such as you now occupy? 6 MR. DELAMORE: I guess I better answer "yes" to that. 7 MR. MINASIAN: So what I want to do with you is ask 8 you a few questions which are designed to help this Board 9 understand what the likelihood of some announcement from 10 the Bureau in the near future in regard to drainage is. 11 So let me start with the Rainbow Report. Is it a 12 correct statement that the Rainbow Report was basically a 13 report that was designed and concluded that we want to 14 defer making a decision in regard to out-of-valley 15 drainage? 16 MR. BRANDT: Objection. Vague. 17 MR. MINASIAN: Okay. Do you agree that at various 18 points in the report it admits that out-of-valley solutions 19 were not to be considered? 20 MR. DELAMORE: Yes. 21 MR. MINASIAN: And in the recommended plan it 22 recommended that the decision regarding out-of-valley be 23 deferred? 24 MR. DELAMORE: Correct. 25 MR. MINASIAN: And that the measures that were CAPITOL REPORTERS (916) 923-5447 6452 1 described in the plan, although they could fit into an 2 out-of-valley solution and they might be helpful, were 3 viewed as precursors something that you do while the 4 decision is being deferred? 5 MR. DELAMORE: That's my understanding of it, yes. 6 MR. MINASIAN: Okay. Now, the Bureau of Reclamation 7 from time to time sends messages to you both on paper and 8 implicit messages about what they want to do in regard to 9 the drainage problem on the west side, do they not? 10 MR. DELAMORE: The Bureau of Reclamation? 11 MR. MINASIAN: Yes. It's too general, isn't it? 12 MR. DELAMORE: That's too general. 13 MR. MINASIAN: Because the Bureau of Reclamation just 14 isn't a body, it's a collection of individuals governed by 15 congress, isn't it? 16 MR. DELAMORE: Correct. 17 MR. MINASIAN: And if we imagine it as the King, 18 there's no one mind of the King, is there? 19 MR. DELAMORE: I guess that's one way to characterize 20 it. 21 MR. MINASIAN: What's the likelihood, in your view, 22 of the King making up its mind as to whether or not there 23 is going to be out-of-valley drainage based upon your 24 experience to date within the next decade? 25 MR. DELAMORE: I think such a decision would evolve CAPITOL REPORTERS (916) 923-5447 6453 1 from participation by all stakeholders and interested 2 publics and you would evolve to a decision that this is the 3 right and best thing to do. I don't think the Bureau of 4 Reclamation would necessarily unilaterally decide that that 5 was the best way to go. 6 MR. MINASIAN: So let's talk about this evolution 7 process and see whether or not -- Strike that. That's a 8 speech. 9 Just imagine for a moment, you've been required to 10 historically examine the origins of this problem and 11 situation, have you not? 12 MR. DELAMORE: Through my experience, whether 13 required or otherwise, I've been exposed to a lot of the 14 history. 15 MR. MINASIAN: Is it correct that in 1960 congress 16 said there will be a San Luis drain? 17 MR. DELAMORE: It -- 18 MR. BRANDT: Objection. Calls for a legal 19 conclusion. 20 MR. MINASIAN: Yeah. Is it correct that the San Luis 21 Act includes as paragraph 1A words to the affect "there 22 shall be a drain"? 23 MR. DELAMORE: Calls for a legal conclusion. 24 MR. MINASIAN: All right. And is it correct that 25 when there was no drain in 1968 the Central California CAPITOL REPORTERS (916) 923-5447 6454 1 Irrigation District and the Firebaugh Canal Water District 2 went to court and asked for an injunction against the 3 Bureau because there was no drain? 4 MR. DELAMORE: I'm generally aware that there were 5 maybe two different lawsuits brought in the 1960's. 6 MR. MINASIAN: Right. The first one the Bureau won 7 because it promised the drain was going to be constructed, 8 didn't it? 9 MR. DELAMORE: I don't know. 10 MR. MINASIAN: Okay. Well, you've seen the judgment, 11 haven't you? 12 MR. BRANDT: Objection. Vague. 13 MR. MINASIAN: Let me withdraw. There was a second 14 action in which the same parties brought an action and the 15 injunction was, again, refused, wasn't it? 16 MR. DELAMORE: I think so, yes. 17 MR. MINASIAN: And do you remember what the basis of 18 that refusal was? 19 MR. DELAMORE: No, I'm not really aware of exactly 20 the specifics. 21 MR. MINASIAN: And now we have litigation in 1985 22 when the drain was closed by the same Exchange Contractors, 23 don't we? 24 MR. DELAMORE: There was litigation by the Exchange 25 Contractors brought in the '80s. I don't know exactly CAPITOL REPORTERS (916) 923-5447 6455 1 when. 2 MR. MINASIAN: And now we have this last action 3 involving Sumner Peck, Westlands and the Exchange 4 Contractors, don't we? 5 MR. DELAMORE: Yes. 6 MR. MINASIAN: So would you predict for the Board 7 that we're going to have a continuing set of litigation 8 into the ostensible future with the King on this subject 9 which never ends? 10 MR. BRANDT: Objection. Argumentative. 11 C.O. STUBCHAER: Speculative. 12 MR. MINASIAN: Do you have an opinion about that? 13 MR. BRANDT: Calls for speculative -- objection. 14 Speculative. Calls for speculation. 15 C.O. CAFFREY: I'll allow you to answer if you have 16 an opinion, sir. 17 MR. DELAMORE: I'm afraid I don't know. I'd like to 18 be more optimistic, but -- 19 MR. MINASIAN: We'd like you to be more optimistic, 20 Mr. Delamore. And you're a pleasure to work with. The 21 master drain, you've looked historically at the way it was 22 contemplated in the middle 1970's, have you not? 23 MR. DELAMORE: Yes. I'm generally -- yes. 24 MR. MINASIAN: It was shown on maps and there were 25 actually drawings -- CAPITOL REPORTERS (916) 923-5447 6456 1 MR. DELAMORE: Yes. 2 MR. MINASIAN: -- showing how big it would be, 3 weren't there? 4 MR. DELAMORE: Correct. 5 MR. MINASIAN: And the area to be served by the 6 master drain was the San Luis unit, which consists of 7 various water-supplying districts. Could you name those 8 for us? 9 MR. DELAMORE: The San Luis unit? 10 MR. MINASIAN: Yes. 11 MR. DELAMORE: Westlands -- 12 MR. MINASIAN: How about Broadview Water District? 13 MR. DELAMORE: Broadview does not take water off the 14 San Luis Canal. 15 MR. MINASIAN: Is it part of the San Luis unit? 16 MR. DELAMORE: If you look at the service area, 17 authorized service area back in the original reports, part 18 of Broadview I think is in the San Luis unit service area. 19 MR. MINASIAN: Panoche Water District? 20 MR. DELAMORE: Part of Panoche was in the original 21 authorized service area and has a San Luis contract. 22 MR. MINASIAN: San Luis Water District? 23 MR. DELAMORE: A portion. 24 MR. MINASIAN: Okay. Now, in addition there was to 25 be service to areas going towards Patterson and Tracy, was CAPITOL REPORTERS (916) 923-5447 6457 1 there not? 2 MR. DELAMORE: That's my recollection. I think they 3 were looking at -- as I mentioned earlier, there is an 4 authorization in there to allow others to use. And I think 5 that they are planning on meeting needs throughout its 6 length. 7 MR. MINASIAN: So the previous testimony in which you 8 were asked what the master drain did, it, in fact, 9 attempted to ameliorate drainage problems in an area much 10 bigger than the San Luis unit, did it not? 11 MR. DELAMORE: I think it would be fair to say that 12 the planning included other areas besides the San Luis 13 unit. 14 MR. MINASIAN: Okay. Now, in terms of your 15 experience with the Bureau, you're aware of what it takes 16 to get something done in the Bureau, aren't you? 17 MR. BRANDT: Objection. Vague. 18 MR. MINASIAN: Yeah. That is: You're aware what it 19 takes to get the King, the government, to do things, are 20 you not. 21 MR. BRANDT: Objection. Vague. 22 C.O. CAFFREY: I'm going to sustain the objection, 23 but I have to note that everybody does understand the 24 question, excuse me, those of us especially in government. 25 Go ahead, Mr. Minasian, try it again. CAPITOL REPORTERS (916) 923-5447 6458 1 MR. MINASIAN: We have a congressional authorization 2 in the San Luis Act according to Judge Wanger, don't we, 3 Mr. Delamore? 4 MR. DELAMORE: Yes. 5 MR. MINASIAN: We need a permit from the State Water 6 Resources Control Board, or a similar State governmental 7 entity, do we not? 8 MR. DELAMORE: That's my understanding, yes. 9 MR. MINASIAN: And we need money, correct? 10 MR. DELAMORE: That's correct, yes. 11 MR. MINASIAN: And we need a will, collective will of 12 the surfs of the King; is that correct? 13 MR. DELAMORE: I think that's fair. 14 MR. MINASIAN: What are we lacking? We've got the 15 authorization, what are we lacking? 16 MR. DELAMORE: The money, the will and the -- and 17 what was the other thing you mentioned? 18 MR. MINASIAN: Permit. 19 MR. DELAMORE: Permit, those three things. 20 MR. MINASIAN: Do you have any opinion for this Board 21 as to how long it will be before the Bureau tries to 22 organization the surfs to have the will to get the permit 23 to get the money? 24 MR. BRANDT: Objection. Calls for speculation. 25 C.O. CAFFREY: I'll allow him to answer if he has an CAPITOL REPORTERS (916) 923-5447 6459 1 answer; if not, he doesn't have to. 2 MR. DELAMORE: Yeah. I don't really have -- any 3 answer would be a guess and -- 4 MR. MINASIAN: All right. Do you think it's possible 5 that the Bureau will never organize the other three 6 factors? 7 MR. DELAMORE: That's within the envelope of 8 possibility I would guess, yes. 9 MR. MINASIAN: So if the Bureau has the water rights 10 for the project and promises to beneficially use the water 11 and never organizations the other three elements of 12 drainage program, how would you foresee, if you can, how 13 the drainage could ever be solved with an out-of-valley 14 drainage facility? 15 MR. DELAMORE: I don't know. I think it still 16 somewhat remains to be determined whether an out-of-valley 17 drainage facility is necessary to solve the problem. 18 MR. MINASIAN: Okay. Let's go to that subject. You 19 were talking about agroforestry as one of the alternatives 20 in the drainage program. Part of your duties are to look 21 at the feasibility of that, are they not? 22 MR. DELAMORE: I -- indirectly I guess you could say 23 that. 24 MR. MINASIAN: Okay. Is part of your duties to take 25 the Rainbow Report and try to determine whether or not CAPITOL REPORTERS (916) 923-5447 6460 1 things that were thought of by the authors are feasible at 2 this point in time? 3 MR. DELAMORE: Yeah. I think part of my job is to 4 help stimulate the implementation and identify the 5 impediments to implementing some of those things. And one 6 of those impediments may be it just wouldn't work. 7 MR. MINASIAN: Okay. The agroforestry you touched 8 upon in your previous testimony was a plan whereby heavily 9 saline water could be put into certain areas where trees or 10 bushes would uptake the saline water and transpire it, 11 would they not? 12 MR. DELAMORE: That, in general, is the concept, yes. 13 MR. MINASIAN: And the concept was that the product 14 either the wood or the vegetative material would be useful 15 for some purpose? 16 MR. DELAMORE: That would, certainly, help to offset 17 other costs of doing that and would be -- I don't know that 18 it would actually be required to get a marketable product 19 out of, for example, wood. 20 MR. MINASIAN: But you'd have to have the ability to 21 renew the vegetation periodically so it would continue to 22 uptake? 23 MR. DELAMORE: Yes. 24 MR. MINASIAN: Yes. Did you become aware at some 25 point that wags in the areas were suggesting that we ought CAPITOL REPORTERS (916) 923-5447 6461 1 to grow vegetation to make paper so the Bureau could 2 continue to study this matter because it was the only way 3 we were going to get salt out of the valley was to spread 4 the studies across the country? 5 MR. BRANDT: Objection. Vague. Argumentative. 6 MR. MINASIAN: Let me withdraw the question. Has the 7 market for wood chips basically dried up since 1990? 8 MR. DELAMORE: I'm not aware of any market that's 9 developed for -- I think you're talking about eucalyptus 10 trees or something. 11 MR. MINASIAN: Okay. Let's go through the 12 alternatives. Which of the alternatives are more probable 13 of implementation and which are less probable of 14 implementation since the study? Is agroforestry more 15 probable or less probable? 16 MR. DELAMORE: I think in given forms it has probable 17 if not more. 18 MR. MINASIAN: Okay. How about land retirement? 19 You're working on land retirement fairly often, are you 20 not? 21 MR. DELAMORE: Not directly these days, but there is 22 a land retirement program within the Bureau right now, yes. 23 MR. MINASIAN: Yes. That alternative looks more 24 problematic today than it did in 1990, doesn't it? 25 MR. DELAMORE: There is a lot of issues associated CAPITOL REPORTERS (916) 923-5447 6462 1 with it, but I think it was looked at as problematic in 2 1990, too. 3 MR. MINASIAN: You're not a scientist, per se, but 4 have you gained experience in regards to problems of drying 5 up a piece of land, not irrigating, and how that really 6 reduces drainage on the surrounding lands and down slope? 7 MR. DELAMORE: I'm aware of some modeling that we had 8 done of various land retirement scenarios. And my 9 recollection is the primary benefit from a drainage 10 standpoint for land retirement is just basically reducing 11 the drainage water from that retired land that has to be 12 dealt with. 13 MR. MINASIAN: Okay. 14 MR. DELAMORE: So to that extent, it takes care of a 15 small piece of what the drainage program called "problem 16 water." 17 MR. MINASIAN: So if that land had seleniferous soils 18 which were still leaching after 20 or 30 years of 19 irrigation, and if it also was adding salt to the water, 20 that land could be a candidate for land retirement. Is 21 that your understanding of the current status of the 22 Bureau's approach to this? 23 MR. DELAMORE: I think that's generally accurate, 24 yes. 25 MR. MINASIAN: Okay. You've sat through much of the CAPITOL REPORTERS (916) 923-5447 6463 1 hearings in Phase V. You're aware that land that has 2 selenium that is dilutable by water becomes solute, if it's 3 been irrigated for 20 or 30 years the selenium is already 4 in solution, are you not? 5 MR. DELAMORE: My understanding out there is most of 6 the problem with selenium is in the shallow groundwater. 7 MR. MINASIAN: Okay. And you're aware that this idea 8 of buying land and retiring it in the Rainbow Report, at 9 least, they didn't focus upon how they were going to keep 10 growing crops to keep the shallow water from being consumed 11 by the lands, did they? 12 MR. DELAMORE: Shallow water being consumed? 13 MR. MINASIAN: Studiously, I'm not going to try to 14 not make you an expert in the mechanics of drainage. So 15 let me just leave that. 16 Is there a concern expressed that if you idle 17 land, you take it out of production that it will not 18 utilize shallow poor-quality groundwater because roots will 19 not extend into those shallow groundwaters? 20 MR. DELAMORE: I don't know. I know that there are 21 definite land management issues associated with retired 22 lands. 23 MR. MINASIAN: And retired lands also can't recycle 24 their tile drainage and put it back into the receiving 25 water and hopefully continue to hold the saline and CAPITOL REPORTERS (916) 923-5447 6464 1 selenium in solution on that property, can they? 2 MR. DELAMORE: I would not expect on retired lands 3 that you would be recirculating drain water on those lands, 4 is that what you're asking? 5 MR. MINASIAN: Yes. 6 MR. DELAMORE: No, I would not see that. 7 MR. MINASIAN: All right. And as long as lands are 8 in production growing some sort of crop there's a potential 9 that the landowner would be able to take the water from the 10 shallow groundwater and combine it with his receiving water 11 and at least manage it on his piece of property, isn't 12 there? 13 MR. DELAMORE: There are management techniques to 14 utilize shallow groundwater, specifically and intentionally 15 try to utilize shallow groundwater for crop needs, to meet 16 crop needs at certain times of the year, is that what 17 you're asking? 18 MR. MINASIAN: Yes. 19 MR. DELAMORE: Yes. 20 MR. MINASIAN: One of the other solutions mentioned 21 was the possibility of the treatment of drain water, 22 chemical or mechanical treatment by a treatment plant? 23 MR. DELAMORE: Or biological, yes. 24 MR. MINASIAN: Yes. Is the Bureau spending any money 25 to study those alternatives at the present time? CAPITOL REPORTERS (916) 923-5447 6465 1 MR. DELAMORE: You've got me "at the present time." 2 We have been participating in the funding of a treatment 3 experiment in the Panoche Water District, but I think they 4 have now found another source of funds. 5 MR. MINASIAN: Okay. The Panoche Water District at 6 times have sponsored, since about 1985 they sponsored 7 themselves various attempts to find ways to take 8 constituents out of the water, have they not? 9 MR. DELAMORE: That's correct. 10 MR. MINASIAN: And on occasion the Bureau has helped 11 financially and at other times the money either has not 12 been available or not needed? 13 MR. DELAMORE: We have participated in the funding of 14 a number of treatment investigations over the years and 15 continue to be interested in all of that. I'm not sure -- 16 I don't think we're funding anything at the present time. 17 MR. MINASIAN: So for the Board to understand where 18 this might go in the next three, or four, or five years: 19 Is there anything on the horizon that you'd like 20 to tell the Board in which you think the Bureau might be 21 changing its approach, or altering its approach to this 22 drainage problem on the west side of the San Joaquin 23 Valley? 24 MR. DELAMORE: That's a big question. There's a 25 number of ongoing activities that may or may not evolve CAPITOL REPORTERS (916) 923-5447 6466 1 into other activities, or other directions. 2 MR. MINASIAN: Those are land retirement? 3 MR. DELAMORE: Land retirement is ongoing. I was 4 thinking more specifically of the MOU that's been discussed 5 here today. The -- I'm aware of certain entities in the 6 valley looking at forming a joint effort to help move 7 things along in one direction or another. 8 The San Joaquin Valley Drainage Implementation 9 Program, as I mentioned earlier, is currently in a process 10 of evaluation, if you will. The Grasslands Bypass Project 11 requires in its final three years, if it's extended here 12 shortly, to develop a long-term drainage management plan 13 for that area. So there's a number of activities that are 14 underway that may or may not blossom into something 15 fruitful. 16 MR. MINASIAN: Okay. And of those programs the MOU, 17 as an example, we have the will with Westlands agreeing to 18 fund it. We have the money with Westlands agreeing to fund 19 it. And the Bureau isn't signing the MOU, is that the 20 problem there? 21 MR. DELAMORE: No, I wouldn't characterize it 22 necessarily that way. I'm not sure if the Bureau has been 23 the reason that that hasn't been signed to date. I mean 24 there's been various issues over the course of time. 25 MR. MINASIAN: Do those issues involve CAPITOL REPORTERS (916) 923-5447 6467 1 attorney-client communication that -- 2 MR. DELAMORE: Yeah, I don't think I'm in a position 3 to get into them. But as was mentioned earlier I think the 4 MOU is near -- like I said my understanding is that most of 5 those issues have been resolved. 6 MR. MINASIAN: When we look for the will, the 7 Grasslands Bypass Project is locally sponsored, implemented 8 and financed with a variety of government and private 9 monies is an example of attacking the problem, isn't it? 10 MR. DELAMORE: I view it that way, yes. 11 MR. MINASIAN: So is it -- assuming that nothing 12 changes here, the Bureau is going to continue to have its 13 names on the permit and promise to beneficially use 14 irrigation water. But the drainage problem is not going to 15 be approached in any different manner than what you've 16 testified to? 17 MR. DELAMORE: I don't -- 18 MR. MINASIAN: This is pretty much what we get? 19 MR. BRANDT: Objection. Vague. 20 MR. MINASIAN: Yeah, it was being snide, too. Let me 21 try to put it in perspective. 22 C.O. CAFFREY: An honest man. 23 MR. MINASIAN: Yeah. The water customers along the 24 DMC in the San Luis Canal from the Bureau of Reclamation 25 pay money to the Bureau for water, do they not? CAPITOL REPORTERS (916) 923-5447 6468 1 MR. DELAMORE: Yes. 2 MR. MINASIAN: And although you're not a repayment 3 expert you know that a portion of that payment is for 4 capital, it's to repay the cost of the project, isn't it? 5 MR. DELAMORE: It's my understanding, yes. 6 MR. MINASIAN: How many businesses do you know, Mike, 7 that continue to take capital and not complete the project 8 from their customers? 9 MR. DELAMORE: Well, I don't know that. 10 MR. MINASIAN: Yeah. Nothing further. Thank you. 11 C.O. CAFFREY: All right. Thank you, Mr. Minasian. 12 Do you have any redirect, Ms. Zolezzi? 13 MS. ZOLEZZI: No, I don't. 14 C.O. CAFFREY: All right. I think what we've been 15 doing in this somewhat unique case in chief is to deal with 16 the exhibits as we finish each of the panels. I believe 17 that's what we did with Mr. Schnagl and Mr. Grober when 18 they were here as a panel. 19 MR. BRANDT: Do you want to wait until after -- 20 MS. HARRIGFELD: Cross. 21 C.O. CAFFREY: I was thinking since Mr. Delamore is 22 leaving we can deal with these exhibits then deal with 23 Mr. Ploss, or do you want to deal with them all at once? 24 MS. WHITNEY: No, we have not accepted the exhibits 25 that were put on when Rudy and Les -- CAPITOL REPORTERS (916) 923-5447 6469 1 MS. ZOLEZZI: We deferred all of the exhibits. 2 MS. HARRIGFELD: It was only the cross. 3 C.O. CAFFREY: So it was only the cross that you 4 took? I wasn't here. 5 MS. LEIDIGH: Yeah. 6 C.O. CAFFREY: So I believe the only cross exhibit 7 that we have with regard to Mr. Delamore is 8 Mr. Birmingham's Exhibit 95; is that correct, or was there 9 more? 10 MS. WHITNEY: Mr. Minasian's. 11 C.O. CAFFREY: Mr. Minasian, did you have one. 12 MR. MINASIAN: That was on Mr. -- 13 MS. WHITNEY: Oh, Mr. Ploss. 14 MR. MINASIAN: And he couldn't identify it. I'll put 15 that in through another witness. 16 MS. CAHILL: Did you want to ask about staff and 17 Board questions? 18 C.O. CAFFREY: Thank you, Ms. Cahill. You're hired. 19 MS. CAHILL: No problem. 20 C.O. CAFFREY: Any questions from -- in our zeal to 21 allow Ms. Thomas to celebrate, we've overlooked the staff. 22 I'm sorry. 23 Mr. Howard, any staff questions? 24 MR. HOWARD: No staff questions. 25 C.O. CAFFREY: All right. Anything from the Board CAPITOL REPORTERS (916) 923-5447 6470 1 Members? And Mr. Pettit, did you have a question, sir, or 2 was that for Mr. Ploss? 3 MR. PETTIT: No questions for Mr. Delamore. 4 MEMBER BROWN: Mr. Chairman? 5 C.O. CAFFREY: Yes, Mr. Brown, you have a question? 6 MEMBER BROWN: Yes. On the eucalyptus that's 7 uptaking the tile and drainage water I think out east by 8 Fresno by Firebaugh, is that the project, Mike, you're 9 talking about, the forestry uptake? 10 MR. DELAMORE: Actually, I'm more optimistic about 11 the Red Rock Ranch, John Deiner's experiments that's going 12 on which is -- gosh, it's almost out by Tranquil -- 13 MEMBER BROWN: Is it eucalyptus, or pine? 14 MR. DELAMORE: He has a line of eucalyptus on his 15 eastern boarder of the field. And he's been able to 16 actually -- and he's tiled the whole area. And he's 17 basically got a section that's divided into quarters and 18 three quarters. Like he brings CVP or Project Water in and 19 grows salt sensitive species, ecliptic water and blends. 20 He gets down to approximately about 12 acres of 21 what I call wasteland, which is he's planting various 22 things, trying different things, salicornia and things just 23 for water conservation -- or consumption down to a one-acre 24 dry-cell evaporator system. 25 MEMBER BROWN: I understand that they were using CAPITOL REPORTERS (916) 923-5447 6471 1 about 20,000 parts per million on some of that. Does that 2 sound right? 3 MR. DELAMORE: Yeah. It was getting pretty -- I 4 don't know. I'm sorry, I'm not real up on the specifics, 5 but that doesn't -- it wouldn't surprise me. 6 MEMBER BROWN: And they figured that the uptake of 7 the eucalyptus was about a ton of salts per acre? 8 MR. DELAMORE: Sounds like you know more about the 9 details maybe than I do. 10 MEMBER BROWN: Well, we figured that the 20,000 parts 11 per million equivocates to about 27 tons of salts applied 12 and the eucalyptus just takes up one, that left about 26 13 tons they'll have to figure out what to do with. Is that 14 the project? 15 MR. DELAMORE: That's the amount ending up in the -- 16 MEMBER BROWN: In the -- it was some kind of grass or 17 little herb that they were growing out there. Is that 18 project still under consideration? 19 MR. DELAMORE: Yes, it's still ongoing. And like I 20 said, it's -- you know, we're waiting. It's still an 21 experimental project. And I'm awaiting their three-year 22 report or whatever for the funding that we've put into it, 23 but the reports that I've gotten have been, you know, 24 relatively optimistic on it. 25 MEMBER BROWN: Thank you, Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 6472 1 C.O. CAFFREY: All right. Thank you, Mr. Brown. All 2 right. Let's deal with the cross-examination exhibits then 3 as they pertain to the cross-examination of Mr. Delamore. 4 Am I to understand correctly that it is just the one 5 exhibit from Mr. Birmingham? 6 MR. BIRMINGHAM: Westlands Water District would move 7 to introduce Westlands' Exhibit 95. 8 C.O. CAFFREY: Thank you, sir. Any objection to 9 accepting into record the Westlands' Exhibit Number 95 with 10 regard to the cross-examination of Mr. Delamore? 11 You're offering the exhibit into the record, is 12 that not correct, Mr. Birmingham? 13 MR. BIRMINGHAM: From the Hearing Officer's question 14 I assumed that's what you wanted us to do at this point. 15 C.O. CAFFREY: That's what I mean. 16 MR. BIRMINGHAM: Yes. 17 C.O. CAFFREY: All right. Any objection to accepting 18 that exhibit into the record? All right. It is accepted. 19 We will deal with the other cross-examination exhibits 20 separately as to Mr. Ploss when we finish the 21 cross-examination of that individual. 22 And we will start tomorrow at 9:00 a.m. with the 23 continuation of Mr. Birmingham's cross-examination of 24 Mr. Ploss. And we're on a half-day schedule tomorrow, so 25 we'll start at 9:00 and go to noon, right in that range. CAPITOL REPORTERS (916) 923-5447 6473 1 So with that we'll dismiss the parties to party. Thank 2 you. 3 (The proceedings concluded at 3:39 p.m.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6474 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 6260 through 6475 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 15th day of 14 November, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6475